Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows: (a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”). (b) Each of the Adviser and the Administrator has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable. (c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission. (d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable. (e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations. (f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date. (h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. (i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable. (j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws. (k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 7 contracts
Samples: Underwriting Agreement (Gladstone Investment Corporation\de), Underwriting Agreement (Gladstone Investment Corporation\de), Underwriting Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant warrants to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational certificate of incorporation or governing documents limited liability company operating agreement or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 5 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Contracts (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly as applicable, represents and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Datewarrants to, and agree with agrees with, the Underwriters Manager as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the The Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and the Administrator has been duly formed and is validly existing as a Delaware limited partnership and in good standing under the laws of the State of Delaware, each with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser has and the corporate Administrator had full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, as applicable; and each of the Adviser, the Adviser and Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an “Adviser Material Adverse Effect Effect” or an “Administrator Material Adverse Effect”, as applicable.respectively);
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act or the 1940 Act applicable published rules and regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is are no actionactions, suit or proceeding suits, claims, proceedings or, to the knowledge of the Adviser’s or Administrator’s knowledge, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, investigations pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting threatened to which the Adviser or the Administrator or, to the knowledge of the Adviser or the Administrator, any of their respective officers, partners, or members are or would be a party, or of which is required any of its properties are or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to be disclosed the Adviser or the Administrator, (i) have, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively, or which would reasonably be expected to materially and adversely affect (ii) prevent the consummation of the transactions contemplated hereby;
(d) Neither the Adviser nor the Administrator is (i) in violation of its limited liability company operating agreement or limited partnership operating agreement, respectively, or (ii) in breach of (nor has any event occurred that, with notice or lapse of time or both, would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator is a party, or (iii) in contravention of any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clause (ii) and (iii), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(e) The execution, delivery and performance of this Agreement, any Terms Agreement or Alternative Terms Agreement, the Investment Advisory Agreement or and the Administration Agreement; , the aggregate consummation of all pending legal the transactions contemplated hereby and thereby and the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described therein under the caption “Use of Proceeds”) will not (i) violate the limited liability company operating agreement of the Adviser or governmental proceedings the limited partnership operating agreement of the Administrator, or (ii) result in any breach of (nor has any event occurred that, with notice, lapse of time or both, would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator is a party or of which (iii) contravene any of their respective property law, regulation or assets is rule or any decree, judgment or order applicable to the subject which are not described in Adviser or the Registration Statement and/or Administrator, except, with respect to clause (ii) and (iii), to the Prospectus, including ordinary routine litigation incidental to their business, extent that any such breach or violation or contravention would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicablerespectively; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach or violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with both would reasonably be expected to result in any breach or violation of or constitute a breach of, or default under) (iv) the Adviser’s limited liability company operating agreement or the Administrator’s limited partnership operating agreement, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets (v) other organizational documents of the Adviser or the Administrator, (vi) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator pursuant is a party or (vii) any law, regulation, rule or any decree, judgment or order applicable to the Agreements Adviser or the Administrator, except, with respect to clauses (vi) and Instruments except for (vii), to the extent that any such violations breach, violation or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.;
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been been, and in the case of any Terms Agreement or Alternative Terms Agreement, will be, duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The ; this Agreement, any Terms Agreement or Alternative Terms Agreement, the Investment Advisory Agreement and the Administration Agreement are constitute, or will constitute in the case of any Terms Agreement or Alternative Terms Agreement, valid and legally binding obligations agreements of the Adviser or and the Administrator, respectivelyas applicable, enforceable against them in accordance provided, however, that the Adviser and the Administrator make no representations or warranties with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and limited by the discretion of the court before which any proceeding therefor may be brought.Enforceability Exceptions;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a are true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.respects;
(ih) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; Each of the Adviser and the Administrator are in compliance with has the terms financial resources available to it necessary for the performance of its services and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or obligations as contemplated in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse EffectRegistration Statement and the Prospectus and under this Agreement and with respect to the Investment Advisory Agreement and the Administration Agreement, as applicable; all ;
(i) Subsequent to the date of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or most recent financial statements contained in the aggregateRegistration Statement and the Prospectus, result there has not been any material adverse change, or any development involving a prospective material adverse change, in an Adviser Material Adverse Effect the business, financial condition, capitalization, prospects, or an Administrator Material Adverse Effect, as applicable; and neither regulatory status of the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses whichAdministrator, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.respectively;
(j) Each of the Adviser and the Administrator maintains data processinghas all Consents and has made all necessary filings required under any federal, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general state, local or specific authorizationsforeign law, (ii) access to assets is permitted only in accordance with management’s general regulation or specific authorizationrule, and (iii) has obtained all necessary Consents from other persons, in order to conduct its business, except where the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect failure to any differences. Each of obtain such Consents or make such filings would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively; the Adviser and the Administrator has adopted policies and procedures are not in violation of, or in default under, nor have the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such Consent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, reasonably designed be expected to prevent data breaches and other breaches of applicable privacy laws.have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(k) Neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or the Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the 1934 Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) The Adviser and the Administrator is are not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Company, the Adviser or the Adviser Administrator, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, respectively;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) The operations of the Adviser and the Administrator are and have been conducted at all times in compliance in all material respects with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transaction Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), as amended, the applicable anti-money laundering statutes of jurisdictions where the Adviser or Administrator conduct business, and the rules and regulations promulgated thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser and Administrator Anti-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 Adviser or the Administrator with respect to the Adviser and Administrator Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser and the Administrator, threatened;
(p) Neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the knowledge of the Adviser or the Administrator, any controlled affiliate, agent or representative thereof is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the FCPA or of the U.K. Bribery Act, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment, giving or receipt of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the U.K. Bribery Act or other applicable anti-corruption laws, and the Adviser and the Administrator and any affiliate of the Adviser or the Administrator have conducted their businesses in compliance with the FCPA, the U.K. Bribery Act and other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with applicable anti-corruption laws; and
(q) Neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the Adviser’s nor the Administrator’s knowledge, any or controlled affiliate, representative or agent thereof (i) is, or is controlled or 50% or more owned by or is acting on behalf of, a Sanctioned Person, (ii) is located, organized or resident in a Sanctioned Territory or (iii) will directly or knowingly indirectly (which shall not include anything done with any such proceeds after they have been received by any affiliate of the Managers) use the proceeds of the issuance and sale of Shares hereunder, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other person or entity in any manner to fund or facilitate any activities of or business with any Sanctioned Person or any Sanctioned Territory, at the time of such funding or facilitation or that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as an underwriter, adviser, investor or otherwise). Neither the Adviser nor the Administrator has knowingly engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or the Administrator have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories. Except as has been disclosed to the Manager or is not material to the analysis under any Sanctions, neither the Adviser nor the Administrator, nor any of the Adviser or the Administrator’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or any of its subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Blackstone Secured Lending Fund), Equity Distribution Agreement (Blackstone Secured Lending Fund), Equity Distribution Agreement (Blackstone Secured Lending Fund)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements Adviser and InstrumentsAdministrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be broughtbrought and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing DateAct.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company, if any, the Adviser or the Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(k) The Adviser and the Administrator hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Registration Statement and the Prospectus, except where the failure to hold such licenses, certificates or permits would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect; the Adviser and the Administrator each own or possess rights to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Adviser and Administrator Intellectual Property”) necessary to carry on their businesses as described in the Registration Statement and the Prospectus in all material respects; none of the Adviser and the Administrator or any of their subsidiaries has infringed, and none of the Adviser and the Administrator or their subsidiaries has received notice of conflict with, any Adviser and Administrator Intellectual Property of any other person or entity, which infringement or conflict would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. None of the technology employed by the Adviser or the Administrator has been obtained or is being used by the Adviser or the Administrator in violation of any contractual obligation binding on the Adviser or the Administrator or any of their officers, directors or employees or otherwise in violation of the rights of any persons; neither of the Adviser or the Administrator has received any written or oral communications alleging that they have violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement and the Prospectus, would violate, infringe or conflict with, any Adviser or Administrator Intellectual Property of any other person or entity, except for such violations, infringements or conflicts that would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus and except as would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, the Adviser or the Administrator do not know of any infringement by others of Adviser and Administrator Intellectual Property owned by or licensed to the Adviser or the Administrator.
(l) None of the Adviser, the Administrator, nor any of their subsidiaries nor, any director, officer, agent, employee or affiliate of the Adviser and the Administrator or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the Adviser and the Administrator, their subsidiaries and affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither . Any certificate signed by any officer of the Adviser nor or the Administrator is aware that (i) any executive, key employee and delivered to the Agent or significant group of employees of to counsel for the Company (if any), Agent shall be deemed a representation and warranty by the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (as applicable), to the extent any such person devotes substantive attention Agent as to the matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablecovered thereby.
Appears in 4 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Dateto, and agree with the Underwriters with, each Underwriter as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the The Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing in good standing under the laws of the State state of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Prospectus Final Prospectus, and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in under the laws of each other jurisdiction in which requires such qualification qualification. The Administrator has been duly formed and is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be validly existing in good standing would not otherwise reasonably be expected under the laws of the state of Delaware, with full power and authority to result own, lease and operate its properties and to conduct its business as described in an Adviser Material Adverse Effect or an Administrator Material Adverse Effectthe Registration Statement, as applicableeach Preliminary Prospectus and the Final Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the Company Agreement, as contemplated by the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Final Prospectus. There does not exist any proceeding or.
(c) The Adviser has or had full power and authority to enter into this Agreement and the Investment Advisory Agreement, and the Administrator had full power and authority to enter into this Agreement and the Administration Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Investment Advisory Agreement have been duly and validly authorized by the Adviser, and the execution and delivery of, and the performance by the Administrator of its obligations under this Agreement and the Administration Agreement have been duly and validly authorized by the Administrator; and this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and this Agreement and the Administration Agreement have been duly executed and delivered by the Administrator, and each such agreement constitutes the valid and legally binding agreement of the Adviser or Administrator, as applicable, enforceable against the Adviser or Administrator in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s knowledgeobligations hereunder and thereunder, any facts and the Administrator’s obligations hereunder and thereunder, may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commissionaffecting creditors’ rights generally and by general equitable principles.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge Each of the Adviser or and Administrator has the Administrator, threatened, against or affecting financial resources available to it necessary for the Adviser or the Administrator which is required to be disclosed performance of its services and obligations as contemplated in the Registration Statement, the General Disclosure Package or the each Preliminary Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery Final Prospectus and performance of under this Agreement, the Investment Advisory Agreement and the Administration Agreement Agreement, as applicable.
(e) The description of the Adviser and its business, and the consummation of statements attributable to the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described Adviser, in the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds”) complied and compliance by the Adviser and the Administrator comply in all material respects with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This AgreementAct, the Investment Advisory Agreement 1940 Act, the Advisers Act, the Rules and Regulations and the Administration Agreement have been duly authorized, executed Advisers Act Rules and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement Regulations and the Administration Agreement are valid did not and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The description of the Administrator and its business, and the statements attributable to the Administrator, in the Registration Statement, each Preliminary Prospectus and the Final Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving each of the Adviser or the Administrator or their property is pending or, to the best knowledge of the Adviser and the Administrator, threatened that (i) The is required to be described in each Preliminary Prospectus and the Final Prospectus that is not so described as required, (ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser or the Administrator, as the case may be, to fulfill its obligations hereunder or under the Investment Advisory Agreement or the Administration Agreement or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser or the Administrator that are required to be described in the Registration Statement, each Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Except as otherwise stated therein, since the date as of which information is given in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, (i) there has been no material, adverse change in the condition (financial or otherwise), prospects, earnings, business, regulatory status or properties of the Adviser or Administrator, whether or not arising from the ordinary course of business and (ii) there has been no transaction entered into by the Adviser or Administrator, which is material to the Adviser or Administrator, as the case may be, other than in the ordinary course of its business.
(h) Each of the Adviser and the Administrator possess such licenses possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local state or foreign regulatory agencies or bodies authorities necessary to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess would and has not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or Administrator, whether or not arising from transactions in an Adviser Material Adverse Effect the ordinary course of business, except as set forth in or an Administrator Material Adverse Effectcontemplated in each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(i) This Agreement, as applicablethe Investment Advisory Agreement and the Administration Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Each No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Investment Advisory Agreement and the Administration Agreement, except such as have been made or obtained under the Act, the 1940 Act, the Exchange Act, the Advisers Act, the Trust Indenture Act and the rules and regulations of the FINRA and NASDAQ, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Final Prospectus.
(k) Neither the execution, delivery or performance by the Adviser of this Agreement or the Investment Advisory Agreement, or the execution, delivery or performance by the Administrator of this Agreement or the Administration Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or Administrator, as applicable, pursuant to, (i) the organizational documents of the Adviser or Administrator, as applicable (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser or Administrator, as applicable, is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Adviser or Administrator, as applicable, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or Administrator, as applicable, or any of their respective properties.
(l) Neither the Adviser nor the Administrator has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and neither the Adviser nor the Administrator is aware of any such action taken or to be taken by any affiliates of the Adviser or Administrator.
(m) In the event that the Company or the Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than registered broker-dealers and registered representatives thereof.
(n) The operations of the Adviser and its subsidiaries are and have been conducted at all times in compliance with applicable 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 Administrator Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
(o) The Adviser maintains data processing, communications and other technology systems a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(p) The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each Any certificate signed by any officer of the Adviser or Administrator and delivered to the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither Representatives or counsel for the Adviser nor Underwriters in connection with the Administrator is aware that (i) any executive, key employee or significant group of employees offering of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, Securities shall be deemed a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-competematters covered therein, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableeach Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (MidCap Financial Investment Corp), Underwriting Agreement (Apollo Investment Corp), Underwriting Agreement (Apollo Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Dateto, and agree with the Underwriters with, each Underwriter as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the The Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing in good standing under the laws of the State state of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Basic Prospectus, each Preliminary Final Prospectus and the Prospectus Final Prospectus, and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in under the laws of each other jurisdiction in which requires such qualification qualification. The Administrator has been duly formed and is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be validly existing in good standing would not otherwise reasonably be expected under the laws of the state of Delaware, with full power and authority to result own, lease and operate its properties and to conduct its business as described in an Adviser Material Adverse Effect or an Administrator Material Adverse Effectthe Registration Statement, as applicablethe Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the Company Agreement, as contemplated by the Registration StatementBasic Prospectus, the General Disclosure Package each Preliminary Final Prospectus and the Final Prospectus. There does not exist any proceeding or.
(c) The Adviser has or had full power and authority to enter into this Agreement and the Investment Advisory Agreement, and the Administrator had full power and authority to enter into this Agreement and the Administration Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Investment Advisory Agreement have been duly and validly authorized by the Adviser, and the execution and delivery of, and the performance by the Administrator of its obligations under this Agreement and the Administration Agreement have been duly and validly authorized by the Administrator; and this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and this Agreement and the Administration Agreement has been duly executed and delivered by the Administrator, and each such agreement constitutes the valid and legally binding agreement of the Adviser or Administrator, as applicable, enforceable against the Adviser or Administrator in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s knowledgeobligations hereunder and thereunder, any facts and the Administrator’s obligations hereunder and thereunder, may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commissionaffecting creditors’ rights generally and by general equitable principles.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge Each of the Adviser or and Administrator has the Administrator, threatened, against or affecting financial resources available to it necessary for the Adviser or the Administrator which is required to be disclosed performance of its services and obligations as contemplated in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Basic Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; each Preliminary Final Prospectus and the execution, delivery Final Prospectus and performance of under this Agreement, the Investment Advisory Agreement and the Administration Agreement Agreement, as applicable.
(e) The description of the Adviser and its business, and the consummation of statements attributable to the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described Adviser, in the Registration Statement, the General Disclosure Package Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus under the caption “Use of Proceeds”) complied and compliance by the Adviser and the Administrator comply in all material respects with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This AgreementAct, the Investment Advisory Agreement 1940 Act, the Advisers Act, the Rules and Regulations and the Administration Agreement have been duly authorized, executed Advisers Act Rules and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement Regulations and the Administration Agreement are valid did not and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The description of the Administrator and its business, and the statements attributable to the Administrator, in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving each of the Adviser or the Administrator or their property is pending or, to the best knowledge of the Adviser and the Administrator, threatened that (i) The is required to be described in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus that is not so described as required, (ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser or the Administrator, as the case may be, to fulfill its obligations hereunder or under the Investment Advisory Agreement or the Administration Agreement or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser or the Administrator that are required to be described in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, except as otherwise stated therein, (i) there has been no material, adverse change in the condition (financial or otherwise), prospects, earnings, business, regulatory status or properties of the Adviser or Administrator, whether or not arising from the ordinary course of business and (ii) there has been no transaction entered into by the Adviser or Administrator, which is material to the Adviser or Administrator, as the case may be, other than in the ordinary course of its business as described in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus.
(h) Each of the Adviser and the Administrator possess such licenses possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local state or foreign regulatory agencies or bodies authorities necessary to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess would and has not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or Administrator, whether or not arising from transactions in an Adviser Material Adverse Effect the ordinary course of business, except as set forth in or an Administrator Material Adverse Effectcontemplated in the Basic Prospectus, as applicableeach Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(i) This Agreement, the Investment Advisory Agreement and the Administration Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Each No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Investment Advisory Agreement and the Administration Agreement, except such as have been made or obtained under the Act, the 1940 Act, the Exchange Act and the Advisers Act, the rules and regulations of the FINRA and NASDAQ, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus.
(k) Neither the execution, delivery or performance by the Adviser of this Agreement or the Investment Advisory Agreement, or the execution, delivery or performance by the Administrator of this Agreement or the Administration Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or Administrator, as applicable, pursuant to, (i) the organizational documents of the Adviser or Administrator, as applicable (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser or Administrator, as applicable, is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Adviser or Administrator, as applicable, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or Administrator, as applicable, or any of their respective properties.
(l) Neither the Adviser nor the Administrator has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and neither the Adviser nor the Administrator is aware of any such action taken or to be taken by any affiliates of the Adviser or Administrator.
(m) In the event that the Company or the Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than registered broker-dealers and registered representatives thereof.
(n) The operations of the Adviser and its subsidiaries are and have been conducted at all times in compliance with applicable 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 Administrator Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
(o) the Adviser maintains data processing, communications and other technology systems a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(p) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each Any certificate signed by any officer of the Adviser or Administrator and delivered to the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither Representatives or counsel for the Adviser nor Underwriters in connection with the Administrator is aware that (i) any executive, key employee or significant group of employees offering of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, Securities shall be deemed a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-competematters covered therein, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableeach Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (Apollo Investment Corp), Underwriting Agreement (Apollo Investment Corp), Underwriting Agreement (Apollo Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator Administrator, as applicable, represents and warrants to each Underwriter as of the date hereof, the Applicable Time and the Closing Time, and agrees with each Underwriter, as follows:
(i) the Adviser has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and the Administrator has been duly formed and is validly existing as a Delaware limited partnership and in good standing under the laws of the State of Delaware, each with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser has and the corporate Administrator had full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, as applicable; and each of the Adviser, the Adviser and Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an “Adviser Material Adverse Effect Effect” or an “Administrator Material Adverse Effect”, as applicable.respectively);
(cii) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(diii) There is there are no actionactions, suit or proceeding suits, claims, proceedings or, to the knowledge of the Adviser’s or Administrator’s knowledge, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, investigations pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting threatened to which the Adviser or the Administrator or, to the knowledge of the Adviser or the Administrator, any of their respective officers, partners, or members are or would be a party, or of which is required any of its properties are or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to be disclosed the Adviser or the Administrator, (A) have, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively, or which would reasonably be expected to materially and adversely affect (B) prevent the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which hereby;
(iv) neither the Adviser or nor the Administrator is a party (A) in violation of its limited liability company operating agreement or limited partnership operating agreement, respectively, or (B) in breach of which (nor has any event occurred that, with notice or lapse of their respective property time or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their businessboth, would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effect, as applicable.
(eviolation) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan bank loan, credit agreement or credit agreementother evidence of indebtedness, note, lease or other agreement or instrument to which the Adviser or the Administrator is a party party, or by which it (C) in contravention of any law, regulation or rule or any of them may be bounddecree, judgment or order applicable to which any of the property or assets of the Adviser or the Administrator is subject (collectivelyAdministrator, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses with respect to clause (iiB) and (iii) onlyC), for to the extent that any such violations breach, violation or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and respectively;
(v) the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and Agreement, the consummation of the transactions contemplated herein hereby and therein thereby and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by will not (A) violate the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the limited partnership operating agreement of the Administrator, respectively; nor will such action or (B) result in any violation breach of (nor has any applicable lawevent occurred that, statutewith notice, rulelapse of time or both, regulationwould reasonably be expected to result in any breach or violation) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan, credit agreement or decree other evidence of any governmentindebtedness, government instrumentality or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (C) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clause (B) and (C), to the extent that any such breach or violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively; and the execution, delivery and performance of their respective assetsthis Agreement, properties the Investment Advisory Agreement and the Administration Agreement and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach or operations.violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (D) the Adviser’s limited liability company operating agreement or the Administrator’s limited partnership operating agreement, (E) other organizational documents of the Adviser or the Administrator, (F) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator is a party or (G) any law, regulation, rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clauses (F) and (G), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(fvi) This this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The ; this Agreement, the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectivelyas applicable, enforceable against them in accordance provided, however, that the Adviser and the Administrator make no representations or warranties with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and limited by the discretion of the court before which any proceeding therefor may be brought.Enforceability Exceptions;
(gvii) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a are true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light respects;
(viii) each of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by has the appropriate financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, General Disclosure Package and the Prospectus and under this Agreement and with respect to the Investment Advisory Agreement and the Administration Agreement, as applicable;
(ix) subsequent to the date of the most recent financial statements contained in the Registration Statement, General Disclosure Package and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization, prospects, or regulatory status of the Adviser or Administrator, respectively;
(x) each of the Adviser and the Administrator has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule, and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents or make such filings would not reasonably be expected to, singly or in the aggregate, result in to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablerespectively; the Adviser and the Administrator are not in compliance with violation of, or in default under, nor have the terms and conditions Adviser or the Administrator received notice of all any proceedings relating to revocation or modification of any such Governmental LicensesConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where the failure so to comply such revocation or modification would not, singly individually or in the aggregate, result in reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and respectively;
(xi) neither the Adviser nor the Administrator has received any notice of proceedings relating Administrator, nor, to the revocation knowledge of the Adviser or modification the Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any such Governmental Licenses whichaction designed, singly or in under the aggregateExchange Act, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect the stabilization or an Administrator Material Adverse Effect, as applicable.manipulation of the price of any security of the Company to facilitate the sale of the Securities;
(jxii) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (iA) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (iiB) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Company, the Adviser or the Adviser Administrator, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, respectively;
(xiii) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(xiv) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (B) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(xv) the operations of the Adviser and the Administrator are and have been conducted at all times in compliance in all material respects with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transaction Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), as amended, the applicable anti-money laundering statutes of jurisdictions where the Adviser or Administrator conduct business, and the rules and regulations promulgated thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser and Administrator Anti-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 Adviser or the Administrator with respect to the Adviser and Administrator Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser and the Administrator, threatened;
(xvi) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the knowledge of the Adviser or the Administrator, any controlled affiliate, agent or representative thereof is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the FCPA or of the U.K. Bribery Act, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment, giving or receipt of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the U.K. Bribery Act or other applicable anti-corruption laws, and the Adviser and the Administrator and any affiliate of the Adviser or the Administrator have conducted their businesses in compliance with the FCPA, the U.K. Bribery Act and other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with applicable anti-corruption laws; and
(xvii) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the Adviser’s nor the Administrator’s knowledge, any or controlled affiliate, representative or agent thereof (A) is, or is controlled or 50% or more owned by or is acting on behalf of, a Sanctioned Person, (B) is located, organized or resident in a Sanctioned Territory or (C) will directly or knowingly indirectly (which shall not include anything done with any such proceeds after they have been received by any affiliate of the Underwriters) use the proceeds of the issuance and sale of Securities hereunder, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other person or entity in any manner to fund or facilitate any activities of or business with any Sanctioned Person or any Sanctioned Territory, at the time of such funding or facilitation or that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as an underwriter, adviser, investor or otherwise). Neither the Adviser nor the Administrator has knowingly engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or the Administrator have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories. Except as has been disclosed to the Underwriters or is not material to the analysis under any Sanctions, neither the Adviser nor the Administrator, nor any of the Adviser or the Administrator’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or any of its subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories.
Appears in 3 contracts
Samples: Underwriting Agreement (Blackstone Secured Lending Fund), Underwriting Agreement (Blackstone Secured Lending Fund), Underwriting Agreement (Blackstone Secured Lending Fund)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Dateto, and agree with with, the Underwriters Manager as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the The Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing in good standing under the laws of the State state of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus Prospectus, and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in under the laws of each other jurisdiction in which requires such qualification qualification. The Administrator has been duly formed and is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be validly existing in good standing would not otherwise reasonably be expected under the laws of the state of Delaware, with full power and authority to result own, lease and operate its properties and to conduct its business as described in an Adviser Material Adverse Effect or an Administrator Material Adverse Effectthe Registration Statement and the Prospectus, as applicableand is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company Agreement, as contemplated by the Registration StatementProspectus.
(c) The Adviser has or had full power and authority to enter into this Agreement, the General Disclosure Package Alternative Equity Distribution Agreements, any Terms Agreement, any Alternative Terms Agreement and the Prospectus. There does not exist Investment Advisory Agreement, and the Administrator has or had full power and authority to enter into this Agreement, the Alternative Equity Distribution Agreements, any proceeding orTerms Agreement, any Alternative Terms Agreement and the Administration Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Alternative Equity Distribution Agreements and the Investment Advisory Agreement have been, and the execution and delivery of, and the performance by the Adviser of its obligations under, any Terms Agreement and any Alternative Terms Agreement will have been at the time of execution thereof, duly and validly authorized by the Adviser, and the execution and delivery of, and the performance by the Administrator of its obligations under, this Agreement, the Alternative Equity Distribution Agreements and the Administration Agreement have been, and the execution and delivery of, and the performance by the Administrator of its obligations under, any Terms Agreement and any Alternative Terms Agreement will have been at the time of execution thereof, duly and validly authorized by the Administrator; and this Agreement, the Alternative Equity Distribution Agreements, and the Investment Advisory Agreement have been, and any Terms Agreement and any Alternative Terms Agreement will have been, duly executed and delivered by the Adviser and this Agreement, the Alternative Equity Distribution Agreements and the Administration Agreement have been, and any Terms Agreement and any Alternative Terms Agreement will have been, duly executed and delivered by the Administrator, and each such agreement constitutes the valid and legally binding agreement of the Adviser or Administrator, as applicable, enforceable against the Adviser or Administrator in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s knowledgeobligations hereunder and thereunder, any facts and the Administrator’s obligations hereunder and thereunder, may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commissionaffecting creditors’ rights generally and by general equitable principles.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge Each of the Adviser or and Administrator has the Administrator, threatened, against or affecting financial resources available to it necessary for the Adviser or the Administrator which is required to be disclosed performance of its services and obligations as contemplated in the Registration Statement, the General Disclosure Package or Statement and the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in under this Agreement, the Investment Advisory Agreement or the Administration Alternative Equity Distribution Agreements, any Terms Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which , any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Alternative Terms Agreement, the Investment Advisory Agreement and the Administration Agreement Agreement, as applicable.
(e) The description of the Adviser and its business, and the consummation of statements attributable to the transactions contemplated herein and therein and Adviser, in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) complied and compliance by the Adviser and the Administrator comply in all material respects with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement1933 Act, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 1940 Act and the 1940 Advisers Act or and did not and will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The description of the Administrator and its business, and the statements attributable to the Administrator, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving each of the Adviser or the Administrator or their property is pending or, to the best knowledge of the Adviser and the Administrator, threatened that (i) The is required to be described in the Prospectus that is not so described as required, (ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser or the Administrator, as the case may be, to fulfill its obligations hereunder or under the Investment Advisory Agreement or the Administration Agreement or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser or the Administrator that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the 1933 Act or the 1940 Act.
(g) Except as otherwise stated therein, since the date as of which information is given in the Basic Prospectus, and the Prospectus, (i) there has been no material, adverse change in the condition (financial or otherwise), prospects, earnings, business, regulatory status or properties of the Adviser or Administrator, whether or not arising from the ordinary course of business and (ii) there has been no transaction entered into by the Adviser or Administrator, which is material to the Adviser or Administrator, as the case may be, other than in the ordinary course of its business.
(h) Each of the Adviser and the Administrator possess such licenses possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local state or foreign regulatory agencies or bodies authorities necessary to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess would and has not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or Administrator, whether or not arising from transactions in an Adviser Material Adverse Effect the ordinary course of business, except as set forth in or an Administrator Material Adverse Effectcontemplated in the Prospectus.
(i) This Agreement, as applicablethe Alternative Equity Distribution Agreements, the Investment Advisory Agreement and the Administration Agreement comply, and any Terms Agreement and any Alternative Terms Agreement will comply, in all material respects with all applicable provisions of the 1933 Act, the 1940 Act and the Advisers Act.
(j) Each No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, any Terms Agreement or in the Investment Advisory Agreement and the Administration Agreement, except such as have been made or obtained under the 1933 Act, the 1940 Act, the Exchange Act and the Advisers Act, the rules and regulations of the FINRA and The NASDAQ Stock Market LLC, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Manager in the manner contemplated herein and in the Prospectus.
(k) Neither the execution, delivery or performance by the Adviser of this Agreement, the Alternative Equity Distribution Agreements, any Terms Agreement, any Alternative Terms Agreement or the Investment Advisory Agreement, or the execution, delivery or performance by the Administrator of this Agreement, the Alternative Equity Distribution Agreements, any Terms Agreement, any Alternative Terms Agreement or the Administration Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or Administrator, as applicable, pursuant to, (i) the organizational documents of the Adviser or Administrator, as applicable (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser or Administrator, as applicable, is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Adviser or Administrator, as applicable, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or Administrator, as applicable, or any of their respective properties.
(l) Neither the Adviser nor the Administrator has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and neither the Adviser nor the Administrator is aware of any such action taken or to be taken by any affiliates of the Adviser or Administrator.
(m) In the event that the Company or the Adviser makes available any promotional materials related to the Shares or the transactions contemplated hereby intended for use only by registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than registered broker-dealers and registered representatives thereof.
(n) The operations of the Adviser and its subsidiaries are and have been conducted at all times in compliance with applicable 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 Administrator Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
(o) The Adviser maintains data processing, communications and other technology systems a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(p) The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each Any certificate signed by any officer of the Adviser or Administrator and delivered to the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither Manager or counsel for the Adviser nor Manager in connection with the Administrator is aware that (i) any executive, key employee or significant group of employees offering of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, Shares shall be deemed a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-competematters covered therein, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by to the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableManager.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Adviser, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) neither the Adviser nor, to the knowledge of the Adviser, any director, officer, employee or affiliate of the Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the Foreign Corrupt Practices Act of 1977, as applicableamended, and the rules and regulations thereunder; and
(p) neither the Adviser, any director, officer or employee of the Adviser nor, to the knowledge of the Adviser, any affiliate or agent of the Adviser is currently the subject of any sanctions administered by OFAC; and the Adviser will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of or with any person or entity, or in any country or territory that, at the time of such financing is the subject of any sanctions administered by OFAC.
Appears in 3 contracts
Samples: Underwriting Agreement (PennantPark Floating Rate Capital Ltd.), Underwriting Agreement (PennantPark Floating Rate Capital Ltd.), Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be broughtbrought and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing DateAct.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, Time and as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected expected, individually or in the aggregate, to result in a Company Material Adverse Effect, would otherwise reasonably be expected expected, individually or in the aggregate, to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected expected, individually or in the aggregate, to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized and is validly existing and in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected expected, individually or in the aggregate, to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit suit, claim or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected expected, individually or in the aggregate, to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or documents, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement (each as amended to date) of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Gladstone Capital Corp), Underwriting Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any)Company, the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Gladstone Capital Corp), Underwriting Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing DateTime.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Gladstone Investment Corporation\de), Underwriting Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agents as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agents as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought, and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing DateAct.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(k) The Adviser and the Administrator hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Registration Statement and the Prospectus, except where the failure to hold such licenses, certificates or permits would not result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect; the Adviser and the Administrator each own or possess rights to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Adviser and Administrator Intellectual Property”) necessary to carry on their businesses as described in the Registration Statement and the Prospectus in all material respects; none of the Adviser, the Administrator or any of their subsidiaries has infringed, and none of the Adviser, the Administrator or their subsidiaries has received notice of conflict with, any Adviser and Administrator Intellectual Property of any other person or entity, which infringement or conflict would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect. None of the technology employed by the Adviser or the Administrator has been obtained or is being used by the Adviser or the Administrator in violation of any contractual obligation binding on the Adviser, the Administrator, or any of their respective officers, directors or employees or otherwise in violation of the rights of any persons; neither of the Adviser or the Administrator has received any written or oral communications alleging that they have violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement and the Prospectus, would violate, infringe or conflict with, any of the Adviser and Administrator Intellectual Property of any other person or entity, except for such violations, infringements or conflicts that would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus and except as would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, neither of the Adviser or the Administrator knows of any infringement by others of Adviser and Administrator Intellectual Property owned by or licensed to the Adviser or the Administrator.
(l) Each of the Adviser and the Administrator is in compliance in all material respects with all presently applicable provisions of ERISA; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Adviser and the Administrator would have any liability; the Adviser and the Administrator has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Adviser and the Administrator would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification.
(m) None of the Adviser, the Administrator, nor any of its subsidiaries, nor any director, officer, agent, employee or affiliate of the Adviser or the Administrator, nor any director, officer, agent or affiliate of any subsidiary of the Adviser or the Administrator nor, to the knowledge of the Adviser or the Administrator, any employee of any subsidiary of the Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of FCPA, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under any other applicable anti-bribery or anti-corruption laws, including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the any applicable anti-bribery or anti-corruption laws, and the Adviser, the Administrator, and their respective subsidiaries and affiliates have conducted their businesses in compliance with any applicable anti-bribery or anti-corruption laws and have instituted, maintained and enforced and will continue to maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Any certificate signed by any officer of the Adviser or the Administrator and delivered to the Agents or to counsel for the Agents shall be deemed a representation and warranty by the Adviser or the Administrator (as applicable), to the Agents as to the matters covered thereby.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Gladstone Capital Corp), Equity Distribution Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Dateto, and agree with the Underwriters with, each Underwriter as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the The Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing in good standing under the laws of the State state of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Prospectus Final Prospectus, and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in under the laws of each other jurisdiction in which requires such qualification qualification. The Administrator has been duly formed and is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be validly existing in good standing would not otherwise reasonably be expected under the laws of the state of Delaware, with full power and authority to result own, lease and operate its properties and to conduct its business as described in an Adviser Material Adverse Effect or an Administrator Material Adverse Effectthe Registration Statement, as applicableeach Preliminary Prospectus and the Final Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the Company Agreement, as contemplated by the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Final Prospectus. There does not exist any proceeding or.
(c) The Adviser has or had full power and authority to enter into this Agreement and the Investment Advisory Agreement, and the Administrator had full power and authority to enter into this Agreement and the Administration Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Investment Advisory Agreement have been duly and validly authorized by the Adviser, and the execution and delivery of, and the performance by the Administrator of its obligations under this Agreement and the Administration Agreement have been duly and validly authorized by the Administrator; and this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and this Agreement and the Administration Agreement have been duly executed and delivered by the Administrator, and each such agreement constitutes the valid and legally binding agreement of the Adviser or Administrator, as applicable, enforceable against the Adviser or Administrator in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s knowledgeobligations hereunder and thereunder, any facts and the Administrator’s obligations hereunder and thereunder, may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commissionaffecting creditors’ rights generally and by general equitable principles.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge Each of the Adviser or and Administrator has the Administrator, threatened, against or affecting financial resources available to it necessary for the Adviser or the Administrator which is required to be disclosed performance of its services and obligations as contemplated in the Registration Statement, the General Disclosure Package or the each Preliminary Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery Final Prospectus and performance of under this Agreement, the Investment Advisory Agreement and the Administration Agreement Agreement, as applicable.
(e) The description of the Adviser and its business, and the consummation of statements attributable to the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described Adviser, in the Registration Statement, the General Disclosure Package each Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds”) complied and compliance by the Adviser and the Administrator comply in all material respects with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This AgreementAct, the Investment Advisory Agreement 1940 Act, the Advisers Act, the Rules and Regulations and the Administration Agreement have been duly authorized, executed Advisers Act Rules and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement Regulations and the Administration Agreement are valid did not and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The description of the Administrator and its business, and the statements attributable to the Administrator, in the Registration Statement, each Preliminary Prospectus and the Final Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving each of the Adviser or the Administrator or their property is pending or, to the best knowledge of the Adviser and the Administrator, threatened that (i) The is required to be described in each Preliminary Prospectus and the Final Prospectus that is not so described as required, (ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser or the Administrator, as the case may be, to fulfill its obligations hereunder or under the Investment Advisory Agreement or the Administration Agreement or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser or the Administrator that are required to be described in the Registration Statement, each Preliminary Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Except as otherwise stated therein, since the date as of which information is given in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, (i) there has been no material, adverse change in the condition (financial or otherwise), prospects, earnings, business, regulatory status or properties of the Adviser or Administrator, whether or not arising from the ordinary course of business and (ii) there has been no transaction entered into by the Adviser or Administrator, which is material to the Adviser or Administrator, as the case may be, other than in the ordinary course of its business.
(h) Each of the Adviser and the Administrator possess such licenses possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local state or foreign regulatory agencies or bodies authorities necessary to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess would and has not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or Administrator, whether or not arising from transactions in an Adviser Material Adverse Effect the ordinary course of business, except as set forth in or an Administrator Material Adverse Effectcontemplated in each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(i) This Agreement, as applicablethe Investment Advisory Agreement and the Administration Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Each No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Investment Advisory Agreement and the Administration Agreement, except such as have been made or obtained under the Act, the 1940 Act, the Exchange Act, the Advisers Act, the Trust Indenture Act and the rules and regulations of the FINRA, NASDAQ and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Final Prospectus.
(k) Neither the execution, delivery or performance by the Adviser of this Agreement or the Investment Advisory Agreement, or the execution, delivery or performance by the Administrator of this Agreement or the Administration Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or Administrator, as applicable, pursuant to, (i) the organizational documents of the Adviser or Administrator, as applicable (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser or Administrator, as applicable, is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Adviser or Administrator, as applicable, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or Administrator, as applicable, or any of their respective properties.
(l) Neither the Adviser nor the Administrator has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and neither the Adviser nor the Administrator is aware of any such action taken or to be taken by any affiliates of the Adviser or Administrator.
(m) In the event that the Company or the Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than registered broker-dealers and registered representatives thereof.
(n) The operations of the Adviser and its subsidiaries are and have been conducted at all times in compliance with applicable 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 Administrator Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
(o) The Adviser maintains data processing, communications and other technology systems a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(p) The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each Any certificate signed by any officer of the Adviser or Administrator and delivered to the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither Representatives or counsel for the Adviser nor Underwriters in connection with the Administrator is aware that (i) any executive, key employee or significant group of employees offering of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, Securities shall be deemed a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-competematters covered therein, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableeach Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Apollo Investment Corp), Underwriting Agreement (Apollo Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements Adviser and InstrumentsAdministrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be broughtbrought and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company, if any, the Adviser or the Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(k) The Adviser and the Administrator hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Registration Statement and the Prospectus, except where the failure to hold such licenses, certificates or permits would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect; the Adviser and the Administrator each own or possess rights to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Adviser and Administrator Intellectual Property”) necessary to carry on their businesses as described in the Registration Statement and the Prospectus in all material respects; none of the Adviser and the Administrator or any of their subsidiaries has infringed, and none of the Adviser and the Administrator or their subsidiaries has received notice of conflict with, any Adviser and Administrator Intellectual Property of any other person or entity, which infringement or conflict would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. None of the technology employed by the Adviser or the Administrator has been obtained or is being used by the Adviser or the Administrator in violation of any contractual obligation binding on the Adviser or the Administrator or any of their officers, directors or employees or otherwise in violation of the rights of any persons; neither of the Adviser or the Administrator has received any written or oral communications alleging that they have violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement and the Prospectus, would violate, infringe or conflict with, any Adviser or Administrator Intellectual Property of any other person or entity, except for such violations, infringements or conflicts that would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus and except as would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, the Adviser or the Administrator do not know of any infringement by others of Adviser and Administrator Intellectual Property owned by or licensed to the Adviser or the Administrator.
(l) None of the Adviser, the Administrator, nor any of their subsidiaries nor, any director, officer, agent, employee or affiliate of the Adviser and the Administrator or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the Adviser and the Administrator, their subsidiaries and affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither . Any certificate signed by any officer of the Adviser nor or the Administrator is aware that (i) any executive, key employee and delivered to the Agent or significant group of employees of to counsel for the Company (if any), Agent shall be deemed a representation and warranty by the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (as applicable), to the extent any such person devotes substantive attention Agent as to the matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablecovered thereby.
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement and any Terms Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement or any Terms Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and any Terms Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been and any Terms Agreement will be duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are and any Terms Agreement will be valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be broughtbrought and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement or any Terms Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 2 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agents as of the date hereof and as of each Representation Date on which a certificate is required to be delivered pursuant to Section 8(p) of this Agreement, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agents, as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has Delaware, with the limited liability company power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement, the General Disclosure Package Prospectus and enter into this Agreement and the Prospectus and Company Agreements to enter into and perform its obligations under this Agreement; which the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; or the Administrator has is a party, as the power case may be, and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason the conduct of its business or its ownership or leasing of its property or requires such qualification, except to the conduct of business, except, in each case, where extent that the failure to qualify be so qualified or be in good standing would not otherwise reasonably have a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Adviser or the Administrator, as the case may be expected to result in (an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable”). Each of the Adviser and Administrator has no subsidiaries.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act or the 1940 Investment Company Act from acting under the Investment Advisory Agreement for as an investment adviser to the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts and no order of suspension or circumstances the existence revocation of which could reasonably be expected to lead to any proceeding, which might adversely affect the such registration of the Adviser with the Commission.
(d) There is no action, suit has been issued or proceeding proceedings therefor initiated or, to the knowledge of the Adviser, threatened by the Commission.
(c) Each of this Agreement and the Company Agreements to which the Adviser or the Administrator is a party, as the case may be, has been duly authorized by the Adviser and/or the Administrator, as applicable. Each Company Agreement to which the Adviser or the Administrator is a party, complies with the applicable provisions of the Securities Act, the Investment Company Act and the Advisers Act. Each Company Agreement to which the Adviser or the Administrator is a party has been duly executed and delivered by the Adviser or the Administrator, as applicable and (assuming the due and valid authorization, execution and delivery by the other parties thereto) represents a valid and binding agreement of the Adviser or the Administrator, as applicable, enforceable against the Adviser or the Administrator, as applicable, in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s or the Administrator’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Adviser and/or the Administrator, as applicable, of, and the performance by the Adviser and/or the Administrator, as applicable, of its obligations under, this Agreement and each Company Agreement to which the Adviser or the Administrator is a party, respectively, does not conflict with or will not conflict with, result in, or constitute a violation, breach of, default under, (x) the limited liability company operating agreement of the Adviser and/or the Administrator, as applicable (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Adviser and/or the Administrator, as applicable, that is material to the Adviser and/or the Administrator, as applicable, or (z) any law, rule or regulation applicable to the Adviser and/or the Administrator, as applicable, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser and/or the Administrator, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by the Agents.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Adviser and/or the Administrator, as applicable, for the performance by the Adviser and/or the Administrator, as applicable, of its obligations under this Agreement or any Company Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Securities Act, the Investment Company Act, the Advisers Act or the Exchange Act, (ii) the rules and regulations of the FINRA or the Nasdaq Global Select Market , (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser and the Administrator, threatened to which the Adviser and/or the Administrator is a party or to which any of the properties of the Adviser and/or the Administrator is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Adviser and/or the Administrator, as applicable, or on the power or ability of the Adviser and/or the Administrator, as applicable, to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) Each of the Adviser and the Administrator has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser/Administrator Material Adverse Effect.
(h) Each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and by this Agreement and each Company Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and neither the Adviser nor, to the knowledge of the Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Adviser under such document.
(j) All information furnished by the Adviser for use in the Registration Statement and the Prospectus, including, without limitation, the description of the Adviser does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such information not misleading (in the case of the Prospectus, in light of the circumstances under which such information is provided).
(k) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser from that set forth in the Prospectus, and there have been no transactions entered into by the Adviser which are material to the Adviser other than those in the ordinary course of its business or as described in the Prospectus.
(l) Neither the Adviser nor the Administrator, nor any of their respective subsidiariesaffiliates, inquiry has taken, directly or investigation indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(m) The operations of the Adviser and the Administrator are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws and no action, suit or proceeding by or before or brought by any court or governmental agency agency, authority or body, domestic body or foreign, now pending, any arbitrator involving the Adviser or the Administrator with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(in) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions maintains a system of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(o) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each .
(p) Any certificate signed by or on behalf of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (and delivered to the extent any such person devotes substantive attention Agents or counsel for the Agents in connection with this Agreement shall be deemed to matters involving the Company) plans to terminate employment with the Company, be a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of matters covered therein to the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableAgents.
Appears in 1 contract
Samples: Equity Distribution Agreement (Oxford Square Capital Corp.)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or aggregate, an Adviser/Administrator Material Adverse Effect, or (B) prevent the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (e) None of the Adviseror person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation of its organizational or governing documents limited liability company operating agreement, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach of violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with both would reasonably be expected to result in any breach or violation of or constitute a breach ofdefault under) (i) its limited liability company operating agreement, or default under, (ii) or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets other organizational documents of the Adviser or the Administrator pursuant or (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over which the Adviser or the Administrator is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(fe) This Agreement, the Investment Advisory this Agreement and the Administration Agreement have has been duly authorized, executed and delivered by the Adviser or and the Administrator; the Investment Advisory Agreement has been duly authorized, as applicable. The executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as (i) the enforcement enforceability thereof may be subject to (i) limited by bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and (ii) general rights to indemnification and contribution may be limited to equitable principles of equity and general applicability or by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(h) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(i) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(j) Each neither the Adviser, the Administrator nor any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to price of any differences. Each security of the Adviser and Company to facilitate the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches sale of applicable privacy laws.the Shares;
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(l) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization; and
(m) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Samples: Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or aggregate, an Adviser/Administrator Material Adverse Effect, or (B) preventing the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (e) None of the Adviseror person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation the limited liability company operating agreement or other organizational documents of its organizational the Adviser or governing documents or the Administrator, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in constitute an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this AgreementAgreement (and, with respect to the Adviser only, the Investment Advisory Agreement and the Staffing Agreement and, with respect to the Administrator only, the Administration Agreement and the Staffing Agreement) and consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Registration Statement (including the issuance and sale limited liability company operating agreement or other organizational documents of the Securities and Adviser or the use Administrator, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the proceeds from Adviser or the sale of Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Securities Adviser or the Administrator, as described in the Registration Statementcase may be, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”except, with respect to clauses (ii) and compliance (iii), to the extent that any such contravention would not constitute an Adviser/Administrator Material Adverse Effect;
(e) this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator with their respective obligations hereunder and under Administrator; the Investment Advisory Agreement and the Staffing Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Staffing Agreement have been duly authorized, executed and delivered by the Adviser or Administrator; the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement enforceability thereof may be subject to limited by (i) bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and generally, (ii) general equitable principles of equity and (iii) limitation on rights to indemnification and contribution imposed by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement is true, accurate and complete in all material respects;
(g) each of a material fact the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement, the Investment Advisory Agreement, the Staffing Agreement and the Administration Agreement, as applicable;
(h) each of the Adviser and the Administrator owns or omit leases or has access to state a material fact all properties and assets as are necessary to make the statements thereinconduct of its operations as presently conducted, in light of the circumstances in which they were made, except as would not misleading.have an Adviser/Administrator Material Adverse Effect;
(i) The subsequent to the respective dates as to which information is given in the Registration Statement, Disclosure Package and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, capitalization or regulatory status of the Adviser or the Administrator, or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement, Administration Agreement or the Staffing Agreement, as appropriate;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the business now operated failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser/Administrator Material Adverse Effect; neither the Adviser or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such licenses, authorizations, consents or approvals or of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser/Administrator Material Adverse Effect;
(k) each Adviser and Administrator owns, or possesses adequate licenses or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Prospectus as being licensed by them it or which are necessary for the conduct of its businesses (collectively, “Governmental LicensesAdviser/Administrator Intellectual Property”), except where the failure so to possess own, license or have such rights would not reasonably be expected tonot, singly individually or in the aggregate, result in cause an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect; neither the Adviser nor the Administrator has received notice nor is either the Adviser nor the Administrator otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or inadequate to protect the interest of the Adviser or Administrator therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in an Adviser/Administrator Material Adverse Effect;
(l) neither the Adviser nor the Administrator is, and upon the sale of the Shares contemplated under this Agreement and the application of the net proceeds therefrom as applicabledescribed in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses policies and instruments in all material respects; there are no claims by the Adviser or the failure Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of such Governmental Licenses to be in full force and effect would not, singly rights clause; neither the Adviser nor the Administrator has been refused any insurance coverage sought or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableapplied for; and neither the Adviser nor the Administrator has received any notice of proceedings relating reason to the revocation believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(jn) Each neither the Adviser, the Administrator nor, to their knowledge, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and price of any security of the Administrator maintains data processing, communications and other technology systems sufficient Company to provide reasonable assurance that facilitate the sale of the Shares;
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iiio) the recorded accountability for assets Adviser is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have constitute an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(p) the Adviser has implemented a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(q) the Administrator has implemented a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be broughtbrought and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Samples: Sales Contracts (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Adviser, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) neither the Adviser nor, to the knowledge of the Adviser, any director, officer, employee or affiliate of the Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the Foreign Corrupt Practices Act of 1977, as applicableamended, and the rules and regulations thereunder; and
(p) neither the Adviser, any director, officer or employee of the Adviser nor, to the knowledge of the Adviser, any affiliate or agent of the Adviser is currently the subject of any sanctions administered by OFAC; and the Adviser will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of or with any person or entity, or in any country or territory that, at the time of such financing is the subject of any sanctions administered by OFAC.
Appears in 1 contract
Samples: Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) preventing the consummation of the transactions contemplated hereby;
(ed) None neither the Adviser nor the Administrator is in breach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would reasonably expected to result in any breach or violation of, constitute a default under or give the Adviserholder of any indebtedness (or person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation the limited liability company operating agreement or other organizational documents of its organizational the Adviser or governing documents or the Administrator, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in constitute an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this AgreementAgreement (and with respect to the Adviser only, the Investment Advisory Agreement and the Staffing Agreement and, with respect to the Administrator only, the Administration Agreement and the Staffing Agreement) and consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Registration Statement (including the issuance and sale limited liability company operating agreement or other organizational documents of the Securities and Adviser or the use Administrator, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the proceeds from Adviser or the sale of Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Securities Adviser or the Administrator, as described in the Registration Statementcase may be, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”except, with respect to clauses (ii) and compliance (iii), to the extent that any such contravention would not constitute an Adviser/Administrator Material Adverse Effect;
(e) this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator with their respective obligations hereunder and under Administrator; the Investment Advisory Agreement and the Staffing Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Staffing Agreement have been duly authorized, executed and delivered by the Adviser or Administrator; the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement enforceability thereof may be subject to limited by (i) bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and generally, (ii) general equitable principles of equity and (iii) limitation on rights to indemnification and contribution imposed by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement is true, accurate and complete in all material respects;
(g) each of a material fact the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement, the Investment Advisory Agreement, the Staffing Agreement and the Administration Agreement, as applicable;
(h) each of the Adviser and the Administrator owns or omit leases or has access to state a material fact all properties and assets as are necessary to make the statements thereinconduct of its operations as presently conducted, in light of the circumstances in which they were made, except as would not misleading.have an Adviser/Administrator Material Adverse Effect;
(i) The subsequent to the respective dates as to which information is given in the Registration Statement, Disclosure Package and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, capitalization or regulatory status of the Adviser or the Administrator, or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement, Administration Agreement or the Staffing Agreement, as appropriate;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the business now operated failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser/Administrator Material Adverse Effect; neither the Adviser or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such licenses, authorizations, consents or approvals or of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser/Administrator Material Adverse Effect;
(k) each Adviser and Administrator owns, or possesses adequate licenses or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Prospectus as being licensed by them it or which are necessary for the conduct of its businesses (collectively, “Governmental LicensesAdviser/Administrator Intellectual Property”), except where the failure so to possess own, license or have such rights would not reasonably be expected tonot, singly individually or in the aggregate, result in cause an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect; neither the Advisor nor the Administrator has received notice nor is either the Advisor nor the Administrator otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or inadequate to protect the interest of the Adviser or Administrator therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in an Adviser/Administrator Material Adverse Effect;
(l) neither the Adviser nor the Administrator is, and upon the sale of the Shares contemplated under this Agreement and the application of the net proceeds therefrom as applicabledescribed in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses policies and instruments in all material respects; there are no claims by the Adviser or the failure Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of such Governmental Licenses to be in full force and effect would not, singly rights clause; neither the Adviser nor the Administrator has been refused any insurance coverage sought or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableapplied for; and neither the Adviser nor the Administrator has received any notice of proceedings relating reason to the revocation believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(jn) Each neither the Adviser, the Administrator nor, to their knowledge, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and price of any security of the Administrator maintains data processing, communications and other technology systems sufficient Company to provide reasonable assurance that facilitate the sale of the Shares;
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iiio) the recorded accountability for assets Adviser is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have constitute an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(p) the Adviser has implemented a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(q) the Administrator has implemented a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Ladenburg as of the date hereof and as of each Representation Date on which a certificate is required to be delivered pursuant to Section 8(p) of this Agreement, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Ladenburg, as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has Delaware, with the limited liability company power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement, the General Disclosure Package Prospectus and enter into this Agreement and the Prospectus and Company Agreements to enter into and perform its obligations under this Agreement; which the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; or the Administrator has is a party, as the power case may be, and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason the conduct of its business or its ownership or leasing of its property or requires such qualification, except to the conduct of business, except, in each case, where extent that the failure to qualify be so qualified or be in good standing would not otherwise reasonably have a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Adviser or the Administrator, as the case may be expected to result in (an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable”). Each of the Adviser and Administrator has no subsidiaries.
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act or the 1940 Investment Company Act from acting under the Investment Advisory Agreement for as an investment adviser to the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts and no order of suspension or circumstances the existence revocation of which could reasonably be expected to lead to any proceeding, which might adversely affect the such registration of the Adviser with the Commission.
(d) There is no action, suit has been issued or proceeding proceedings therefor initiated or, to the knowledge of the Adviser, threatened by the Commission.
(c) Each of this Agreement and the Company Agreements to which the Adviser or the Administrator is a party, as the case may be, has been duly authorized by the Adviser and/or the Administrator, as applicable. Each Company Agreement to which the Adviser or the Administrator is a party, complies with the applicable provisions of the Securities Act, the Investment Company Act and the Advisers Act. Each Company Agreement to which the Adviser or the Administrator is a party has been duly executed and delivered by the Adviser or the Administrator, as applicable and (assuming the due and valid authorization, execution and delivery by the other parties thereto) represents a valid and binding agreement of the Adviser or the Administrator, as applicable, enforceable against the Adviser or the Administrator, as applicable, in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s or the Administrator’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Adviser and/or the Administrator, as applicable, of, and the performance by the Adviser and/or the Administrator, as applicable, of its obligations under, this Agreement and each Company Agreement to which the Adviser or the Administrator is a party, respectively, does not conflict with or will conflict with, result in, or constitute a violation, breach of, default under, (x) the limited liability company operating agreement of the Adviser and/or the Administrator, as applicable (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Adviser and/or the Administrator, as applicable, that is material to the Adviser and/or the Administrator, as applicable, or (z) any law, rule or regulation applicable to the Adviser and/or the Administrator, as applicable, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser and/or the Administrator, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Ladenburg.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Adviser and/or the Administrator, as applicable, for the performance by the Adviser and/or the Administrator, as applicable, of its obligations under this Agreement or any Company Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Securities Act, the Investment Company Act, the Advisers Act or the Exchange Act, (ii) the rules and regulations of the FINRA or the Nasdaq Global Select Market , (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser and the Administrator, threatened to which the Adviser and/or the Administrator is a party or to which any of the properties of the Adviser and/or the Administrator is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Adviser and/or the Administrator, as applicable, or on the power or ability of the Adviser and/or the Administrator, as applicable, to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) Each of the Adviser and the Administrator has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser/Administrator Material Adverse Effect.
(h) Each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and by this Agreement and each Company Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and neither the Adviser nor, to the knowledge of the Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Adviser under such document.
(j) All information furnished by the Adviser for use in the Registration Statement and the Prospectus, including, without limitation, the description of the Adviser does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such information not misleading (in the case of the Prospectus, in light of the circumstances under which such information is provided).
(k) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser from that set forth in the Prospectus, and there have been no transactions entered into by the Adviser which are material to the Adviser other than those in the ordinary course of its business or as described in the Prospectus.
(l) Neither the Adviser nor the Administrator, nor any of their respective subsidiariesaffiliates, inquiry has taken, directly or investigation indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(m) The operations of the Adviser and the Administrator are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws and no action, suit or proceeding by or before or brought by any court or governmental agency agency, authority or body, domestic body or foreign, now pending, any arbitrator involving the Adviser or the Administrator with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(in) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions maintains a system of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorizations, authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization, .
(o) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (iiiii) the recorded accountability for such assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each .
(p) Any certificate signed by or on behalf of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (and delivered to the extent any such person devotes substantive attention Ladenburg or counsel for Ladenburg in connection with this Agreement shall be deemed to matters involving the Company) plans to terminate employment with the Company, be a representation and warranty by the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected matters covered therein to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableLadenburg.
Appears in 1 contract
Samples: Equity Distribution Agreement (Oxford Square Capital Corp.)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing DateTime.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person individual devotes substantive attention to matters involving the Company) ), as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Each of the Adviser and the Administrator, jointly Administrator represents and severally, represent warrants to and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree agrees with the Underwriters Underwriter as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Preliminary Prospectus and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser and the Administrator has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, respectively; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, constitute a material adverse change in the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in an Adviser prevent such entity from carrying out its obligations under the Investment Advisory Agreement and the Administration Agreement (collectively a “Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Change”); the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Pricing Disclosure Package and the Prospectus. There does not exist any order of suspension, revocation of such registration or other proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might materially adversely affect the registration of the Adviser with the Commission. Each of the Adviser and the Administrator has no subsidiaries.
(db) There The Investment Adviser is duly registered as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement, the Preliminary Prospectus and the Prospectus, and no action, suit order of suspension or proceeding revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Adviser, threatened by the Administrator Commission.
(c) There are no actions, suits, claims, investigations or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or the Administrator, threatenedrespectively, against or affecting threatened to which the either of the Adviser or the Administrator which is required to be disclosed in the Registration StatementAdministrator, the General Disclosure Package or the Prospectus (other than as disclosed therein)respectively, or which any of its officers or members are or would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (i) constituting, individually or in the Registration Statement and/or aggregate, a Material Adverse Change, or (ii) preventing the Prospectusconsummation of the transactions contemplated hereby.
(d) Neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, constitute a default under or give the holder of any indebtedness (or person acting on such holder’s behalf), the right to require the repurchase, redemption or repayment of all or part of such indebtedness under) (i) its charter, bylaws, certificate of formation, limited liability company operating agreement or other organizational documents, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in an Adviser constitute a Material Adverse Effect or Administrator Material Adverse EffectChange and would not adversely affect the consummation of the transactions contemplated hereby, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its charter, bylaws, certificate of formation, limited liability company operating agreement or other organizational documents, as applicable, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not have a Material Adverse Change and would not adversely affect the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationshereby.
(fe) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or and the Administrator, as applicable. The Investment Advisory Agreement respectively, and, assuming due authorization, execution and delivery by the Administration Agreement are other parties hereto and thereto, constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their respective terms, except as (i) the enforcement enforceability thereof may be subject to (i) limited by bankruptcy, reorganization, insolvency, reorganizationmoratorium (including, moratorium without limitation, all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and (ii) general rights to indemnification and contribution may be limited by equitable principles of general applicability whether in a proceeding of equity or in law or by state or federal securities laws or the policies underlying such laws.
(f) Each of this Agreement, the Investment Advisory Agreement and the discretion Administration Agreement complies (i) with Section 15 of the court before which any proceeding therefor may be broughtInvestment Company Act, (ii) in all material respects with such other applicable provisions of the Investment Company Act and the Advisers Act, and (iii) in all material respects with the Securities Act and the Exchange Act.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator and its business contained in the Registration Statement, the General Disclosure Package Preliminary Prospectus and the Prospectus do not contain any untrue statement of a is true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light respects.
(h) Each of the circumstances Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in which they were madethe Registration Statement, not misleadingthe Preliminary Prospectus and the Prospectus and under this Agreement, the Investment Advisory Agreement and the Administration Agreement, respectively.
(i) The Adviser Subsequent to the date of the Preliminary Prospectus and the Administrator possess such licenses issued by the appropriate federalProspectus, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would there has not reasonably be expected to, singly or in the aggregate, result in an Adviser been any Material Adverse Effect Change, or an Administrator any development involving a prospective Material Adverse Effect, as applicable; Change that would otherwise prevent the Adviser and or the Administrator are in compliance with from carrying out its obligations under the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses Investment Advisory Agreement or the failure of such Governmental Licenses to be in full force and effect would notAdministration Agreement, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablerespectively.
(j) Each of the Adviser and the Administrator maintains data processinghas all Consents and has made all necessary filings required under any federal, communications state, local or foreign law, regulation or rule and has obtained all necessary Consents from other technology systems sufficient persons, in order to provide reasonable assurance that (i) transactions are executed in accordance with management’s general conduct its business, except where the failure to make such filings on or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of obtain such Consents would not constitute a Material Adverse Change; the Adviser and is not in violation of, or in default under, nor has the Adviser or the Administrator has adopted policies and procedures reasonably designed received notice of any proceedings relating to prevent data breaches and other breaches revocation or modification of any such Consent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable privacy lawsto the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute a Material Adverse Change.
(k) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Adviser and/or the Administrator, as applicable, prior to the time of purchase for the performance by the Adviser and/or the Administrator, as applicable, of its obligations under this Agreement or any agreement to which it is a party, except for (A) such as have been obtained and as may be required by (i) the Securities Act, the Exchange Act, the Investment Company Act or the Advisers Act or NASDAQ in connection with the Company's listing of additional shares application or (ii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Notes or the Common Stock issuable upon conversion thereof or (B) such as which the failure to obtain would not, individually or in the aggregate, have a Material Adverse Change or a material adverse effect on the power or ability of the Adviser or Administrator to consummate the transactions contemplated by this Agreement.
(l) Neither the Adviser nor the Administrator, nor any of their respective partners, members, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Notes.
(m) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, Company or the Adviser or the Administrator, as applicablethe case may be, or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser or Administrator, as the case may be, except where such termination or violation would not reasonably be expected to have an Adviser constitute a Material Adverse Effect Change.
(n) The operations of the Adviser and the Administrator are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws and no action, suit or an proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or the Administrator Material Adverse Effectwith respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser or the Administrator, threatened.
(o) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) The Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with United States generally accepted accounting principles and to maintain accountability for the Company’s assets, and (ii) the recorded accountability for such assets if compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) preventing the consummation of the transactions contemplated hereby;
(ed) None neither the Adviser nor the Administrator is in breach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would reasonably expected to result in any breach or violation of, constitute a default under or give the Adviserholder of any indebtedness (or person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation the limited liability company operating agreement or other organizational documents of its organizational the Adviser or governing documents or the Administrator, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in constitute an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this AgreementAgreement (and, with respect to the Adviser only, the Investment Advisory Agreement and the Staffing Agreement and, with respect to the Administrator only, the Administration Agreement and the Staffing Agreement) and consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Registration Statement (including the issuance and sale limited liability company operating agreement or other organizational documents of the Securities and Adviser or the use Administrator, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the proceeds from Adviser or the sale of Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Securities Adviser or the Administrator, as described in the Registration Statementcase may be, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”except, with respect to clauses (ii) and compliance (iii), to the extent that any such contravention would not constitute an Adviser/Administrator Material Adverse Effect;
(e) this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator with their respective obligations hereunder and under Administrator; the Investment Advisory Agreement and the Staffing Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Staffing Agreement have been duly authorized, executed and delivered by the Adviser or Administrator; the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement enforceability thereof may be subject to limited by (i) bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and generally, (ii) general equitable principles of equity and (iii) limitation on rights to indemnification and contribution imposed by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement is true, accurate and complete in all material respects;
(g) each of a material fact the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement, the Investment Advisory Agreement, the Staffing Agreement and the Administration Agreement, as applicable;
(h) each of the Adviser and the Administrator owns or omit leases or has access to state a material fact all properties and assets as are necessary to make the statements thereinconduct of its operations as presently conducted, in light of the circumstances in which they were made, except as would not misleading.have an Adviser/Administrator Material Adverse Effect;
(i) The subsequent to the respective dates as to which information is given in the Registration Statement, Disclosure Package and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, capitalization or regulatory status of the Adviser or the Administrator, or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement, Administration Agreement or the Staffing Agreement, as appropriate;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the business now operated failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser/Administrator Material Adverse Effect; neither the Adviser or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such licenses, authorizations, consents or approvals or of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser/Administrator Material Adverse Effect;
(k) each Adviser and Administrator owns, or possesses adequate licenses or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Prospectus as being licensed by them it or which are necessary for the conduct of its businesses (collectively, “Governmental LicensesAdviser/Administrator Intellectual Property”), except where the failure so to possess own, license or have such rights would not reasonably be expected tonot, singly individually or in the aggregate, result in cause an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect; neither the Advisor nor the Administrator has received notice nor is either the Advisor nor the Administrator otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or inadequate to protect the interest of the Adviser or Administrator therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in an Adviser/Administrator Material Adverse Effect;
(l) neither the Adviser nor the Administrator is, and upon the sale of the Shares contemplated under this Agreement and the application of the net proceeds therefrom as applicabledescribed in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses policies and instruments in all material respects; there are no claims by the Adviser or the failure Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of such Governmental Licenses to be in full force and effect would not, singly rights clause; neither the Adviser nor the Administrator has been refused any insurance coverage sought or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableapplied for; and neither the Adviser nor the Administrator has received any notice of proceedings relating reason to the revocation believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(jn) Each neither the Adviser, the Administrator nor, to their knowledge, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and price of any security of the Administrator maintains data processing, communications and other technology systems sufficient Company to provide reasonable assurance that facilitate the sale of the Shares;
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iiio) the recorded accountability for assets Adviser is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have constitute an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(p) the Adviser has implemented a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(q) the Administrator has implemented a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been duly organized and is validly existing and in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or documents, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or Adviser, the Administrator or any of their respective subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any)Company, the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought, and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(k) The Adviser and the Administrator hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Registration Statement and the Prospectus, except where the failure to hold such licenses, certificates or permits would not result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect; the Adviser and the Administrator each own or possess rights to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Adviser and Administrator Intellectual Property”) necessary to carry on their businesses as described in the Registration Statement and the Prospectus in all material respects; none of the Adviser, the Administrator or any of their subsidiaries has infringed, and none of the Adviser, the Administrator or their subsidiaries has received notice of conflict with, any Adviser and Administrator Intellectual Property of any other person or entity, which infringement or conflict would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect. None of the technology employed by the Adviser or the Administrator has been obtained or is being used by the Adviser or the Administrator in violation of any contractual obligation binding on the Adviser, the Administrator, or any of their respective officers, directors or employees or otherwise in violation of the rights of any persons; neither of the Adviser or the Administrator has received any written or oral communications alleging that they have violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement and the Prospectus, would violate, infringe or conflict with, any of the Adviser and Administrator Intellectual Property of any other person or entity, except for such violations, infringements or conflicts that would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus and except as would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, neither of the Adviser or the Administrator knows of any infringement by others of Adviser and Administrator Intellectual Property owned by or licensed to the Adviser or the Administrator.
(l) Each of the Adviser and the Administrator is in compliance in all material respects with all presently applicable provisions of ERISA; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Adviser and the Administrator would have any liability; the Adviser and the Administrator has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Adviser and the Administrator would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification.
(m) None of the Adviser, the Administrator, nor any of its subsidiaries, nor any director, officer, agent, employee or affiliate of the Adviser or the Administrator, nor any director, officer, agent or affiliate of any subsidiary of the Adviser or the Administrator nor, to the knowledge of the Adviser or the Administrator, any employee of any subsidiary of the Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of FCPA, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under any other applicable anti-bribery or anti-corruption laws, including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the any applicable anti-bribery or anti-corruption laws, and the Adviser, the Administrator, and their respective subsidiaries and affiliates have conducted their businesses in compliance with any applicable anti-bribery or anti-corruption laws and have instituted, maintained and enforced and will continue to maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Any certificate signed by any officer of the Adviser or the Administrator and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Adviser or the Administrator (as applicable), to the Agent as to the matters covered thereby.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any)Company, the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Gladstone Investment Corporation\de)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, constitute a material adverse change in the business, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in an Adviser prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, a “Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.Change”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator or any of their officers, partners or members are or would be a party or of which is required to any of their properties are or would be disclosed subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not result in a judgment, decree or order either (A) constituting, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein)a Material Adverse Change, or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect (B) preventing the consummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in this Agreementbreach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would reasonably expected to result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or person acting on such holder’s behalf), the Investment Advisory Agreement right to require the repurchase, redemption or the Administration Agreement; the aggregate repayment of all pending legal or governmental proceedings part of such indebtedness under) (i) its limited liability company operating agreement and other organizational documents or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or of which (iii) under any of their respective property federal, state, local or assets is the subject which are not described in the Registration Statement and/or the Prospectusforeign law, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect regulation or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator rule or any of their respective subsidiaries is (i) in violation of its organizational decree, judgment or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument order applicable to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectivelyAdministrator, as the “Agreements and Instruments”)case may be, or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in an Adviser constitute a Material Adverse Effect or Administrator Material Adverse EffectChange, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement (with respect to the Adviser only) and the Administration Agreement (with respect to the Administrator only) and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach of violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with both would reasonably be expected to result in any breach or violation of or constitute a breach of, or default under, ) (i) its limited liability company operating agreement or result in the creation (ii) or imposition of any lien, charge or encumbrance upon any property or assets other organizational documents of the Adviser or the Administrator pursuant or (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over which the Adviser or the Administrator is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have a Material Adverse Change;
(fe) This Agreement, the Investment Advisory this Agreement and the Administration Agreement have has been duly authorized, executed and delivered by the Adviser or and the Administrator; the Investment Advisory Agreement has been duly authorized, as applicable. The executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as (i) the enforcement enforceability thereof may be subject to (i) limited by bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and (ii) general rights to indemnification and contribution may be limited to equitable principles of equity and general applicability or by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration StatementProspectus is true, accurate and complete in all material respects;
(g) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement and, with respect to the Adviser only, the General Disclosure Package and Investment Advisory Agreement and, with respect to the Prospectus do Administrator only, the Administration Agreement;
(h) subsequent to the date of the Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(i) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in an Adviser constitute a Material Adverse Effect or an Administrator Material Adverse Effect, as applicableChange; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser constitute a Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.Change;
(j) Each neither the Adviser, the Administrator nor any of their respective members, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to price of any differences. Each security of the Adviser and Company to facilitate the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches sale of applicable privacy laws.the Shares;
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser constitute a Material Adverse Effect Change;
(l) the Adviser is using its best efforts to develop and implement a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuate by it under the Investment Advisory Agreement are executed in accordance with its management’s general or an specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization; and
(m) the Administrator Material Adverse Effect, is using its best efforts to develop and implement a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, and, for purposes only of Sections 4(a), 4(d) and 4(r) hereof, Monroe Capital LLC represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, ”); and each of MC Funding has been duly organized and is validly existing as applicable.a limited liability company under the laws of the State of Delaware and has power and authority to enter into and perform its obligations under the Portfolio Acquisition Agreements;
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over either the Adviser or the Administrator or any of their respective assetsofficers, partners or members are or would be a party or of which any of their properties are or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may would be subject to (i) bankruptcy, insolvency, reorganization, moratorium at law or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing withequity, or authorization, approval, consent, license, order, registration, qualification before or decree of, by any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign governmental or regulatory agencies commission, board, body, authority or bodies necessary to conduct the business now operated by them (“Governmental Licenses”)agency, except where the failure so to possess any such action, suit, claim, investigation or proceeding which would not reasonably be expected toresult in a judgment, singly decree or order either (A) constituting, individually or in the aggregate, result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; or (B) preventing the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all consummation of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and transactions contemplated hereby;
(d) neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation is in breach or modification of any such Governmental Licenses whichviolation of, singly or in the aggregatedefault under (nor has any event occurred which with notice, if the subject lapse of an unfavorable decisiontime, ruling or finding, both would reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managementor person acting on such holder’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if anybehalf), the Adviser (right to require the extent any repurchase, redemption or repayment of all or part of such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.indebtedness
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or Adviser, the Administrator or any of their respective subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (if any)Company, the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Adviser, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) the operations of the Adviser have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements of the Anti-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 Adviser with respect to Anti-Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened;
(p) Neither the Adviser nor any of the Subsidiaries, nor, to the knowledge of the Adviser, any director, officer, agent, employee, affiliate or other person acting on behalf of the Adviser or any of the Subsidiaries is aware of or has taken any action, directly or indirectly, that has resulted or would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as applicablesuch term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and
(q) neither the Adviser, any director, officer or employee of the Adviser nor, to the knowledge of the Adviser, any affiliate or agent of the Adviser is currently the subject of any sanctions administered by OFAC; and the Adviser will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of or with any person or entity, or in any country or territory that, at the time of such financing is the subject of any sanctions administered by OFAC.
Appears in 1 contract
Samples: Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) neither the Adviser nor, to the knowledge of the Adviser, any director, officer, employee or affiliate of the Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the Foreign Corrupt Practices Act of 1977, as applicableamended, and the rules and regulations thereunder; and
(p) neither the Adviser nor, to the knowledge of the Adviser, any director, officer, agent, employee or affiliate of the Adviser is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Adviser will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
Appears in 1 contract
Samples: Underwriting Agreement (PennantPark Floating Rate Capital Ltd.)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.” );
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or aggregate, an Adviser/Administrator Material Adverse Effect, or (B) prevent the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (e) None of the Adviseror person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation of its organizational or governing documents limited liability company operating agreement, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach of violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with both would reasonably be expected to result in any breach or violation of or constitute a breach ofdefault under) (i) its limited liability company operating agreement, or default under, (ii) or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets other organizational documents of the Adviser or the Administrator pursuant or (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over which the Adviser or the Administrator is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(fe) This Agreement, the Investment Advisory this Agreement and the Administration Agreement have has been duly authorized, executed and delivered by the Adviser or and the Administrator; the Investment Advisory Agreement has been duly authorized, as applicable. The executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as (i) the enforcement enforceability thereof may be subject to (i) limited by bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and (ii) general rights to indemnification and contribution may be limited to equitable principles of equity and general applicability or by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(h) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(i) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(j) Each neither the Adviser, the Administrator nor any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to price of any differences. Each security of the Adviser and Company to facilitate the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches sale of applicable privacy laws.the Shares;
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(l) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization; and
(m) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Samples: Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, Time and as of the Closing Date and as of each Option Closing Date, and agree agrees with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the condition (financial conditionor otherwise), or in the earnings, assets, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected expected, individually or in the aggregate, to result in a Company Material Adverse Effect, or would otherwise reasonably be expected expected, individually or in the aggregate, to prevent the Adviser or the Administrator from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Adviser/Administrator Material Adverse Effect”).
(b) Each of the The Adviser and the Administrator has been duly organized and is validly existing and in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under each of the Investment Advisory Agreement; Agreement and the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Staffing Agreement; and the Adviser and each of the Adviser, the Administrator and their respective its subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(c) The Administrator has been duly organized and is validly existing and in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Administrator has the corporate power and authority to execute and deliver and perform its obligations under each of the Administration Agreement and the Staffing Agreement; and the Administrator and each of its subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, where the failure to qualify or be in good standing would not otherwise reasonably be expected, individually or in the aggregate, to result in an Adviser/Administrator Material Adverse Effect.
(d) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company other Monroe Entities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected expected, individually or in the aggregate, to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(de) There is no action, suit suit, claim or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, or which would reasonably be expected expected, individually or in the aggregate, to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement, the Administration Agreement or the Administration Staffing Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(ef) None of Neither the Adviser, the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or documents, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or the Administrator is a party or by which it they or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement and the Administration Staffing Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective its obligations hereunder and under the Investment Advisory Agreement, the Administration Agreement and the Administration Staffing Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement agreements (as amended to date) of the Adviser or the Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(fg) This Each of this Agreement, the Investment Advisory Agreement, the Administration Agreement and the Administration Staffing Agreement have been duly authorized, executed is a valid and delivered by binding obligation of each of the Adviser or and the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them it in accordance with their its terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought.
(gh) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(hi) The descriptions of the Adviser and Adviser, the Administrator and their businesses contained in the Registration Statement, the General Disclosure Package Package, the Prospectus, and the Prospectus any Written Testing-the-Waters Communication and Sales Material do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(ij) The Each of the Adviser and the Administrator possess possesses such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them it (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; each of the Adviser and the Administrator are is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly individually or in the aggregate, result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; and neither the Adviser nor and the Administrator has have not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(jk) Neither the Adviser nor the Administrator, nor to the Adviser’s or the Administrator’s knowledge, any of their affiliates, has taken or will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities.
(l) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the The Adviser and the Administrator has have adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(km) Neither The Adviser (i) has adopted and implemented written policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act reasonably designed to prevent violations of the Advisers Act by the Adviser; (ii) is conducting its business in compliance with all laws, rules, regulations, decisions, directives and orders except for such failure to comply which would not reasonably be expected to result in an Adviser/Administrator Material Adverse Effect; and (iii) is conducting its business in compliance in all material respects with the applicable requirements of the Advisers Act.
(n) The Adviser nor or the Administrator is are not aware that (i) any executive, key employee or significant group of employees of any of the Company (if any)Monroe Entities, the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicablerespective Monroe Entity, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Monroe Entities except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or aggregate, an Adviser/Administrator Material Adverse Effect, or (B) preventing the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (e) None of the Adviseror person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation the limited liability company operating agreement or other organizational documents of its organizational the Adviser or governing documents or the Administrator, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in constitute an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this AgreementAgreement (and, with respect to the Adviser only, the Investment Advisory Agreement and the Staffing Agreement and, with respect to the Administrator only, the Administration Agreement and the Staffing Agreement) and consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Registration Statement (including the issuance and sale limited liability company operating agreement or other organizational documents of the Securities and Adviser or the use Administrator, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the proceeds from Adviser or the sale of Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Securities Adviser or the Administrator, as described in the Registration Statementcase may be, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”except, with respect to clauses (ii) and compliance (iii), to the extent that any such contravention would not constitute an Adviser/Administrator Material Adverse Effect;
(e) this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator with their respective obligations hereunder and under Administrator; the Investment Advisory Agreement and the Staffing Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Staffing Agreement have been duly authorized, executed and delivered by the Adviser or Administrator; the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement enforceability thereof may be subject to limited by (i) bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and generally, (ii) general equitable principles of equity and (iii) limitation on rights to indemnification and contribution imposed by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement is true, accurate and complete in all material respects;
(g) each of a material fact the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement, the Investment Advisory Agreement, the Staffing Agreement and the Administration Agreement, as applicable;
(h) each of the Adviser and the Administrator owns or omit leases or has access to state a material fact all properties and assets as are necessary to make the statements thereinconduct of its operations as presently conducted, in light of the circumstances in which they were made, except as would not misleading.have an Adviser/Administrator Material Adverse Effect;
(i) The subsequent to the respective dates as to which information is given in the Registration Statement, Disclosure Package and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, capitalization or regulatory status of the Adviser or the Administrator, or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement, Administration Agreement or the Staffing Agreement, as appropriate;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the business now operated failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser/Administrator Material Adverse Effect; neither the Adviser or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such licenses, authorizations, consents or approvals or of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser/Administrator Material Adverse Effect;
(k) each Adviser and Administrator owns, or possesses adequate licenses or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Prospectus as being licensed by them it or which are necessary for the conduct of its businesses (collectively, “Governmental LicensesAdviser/Administrator Intellectual Property”), except where the failure so to possess own, license or have such rights would not reasonably be expected tonot, singly individually or in the aggregate, result in cause an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect; neither the Adviser nor the Administrator has received notice nor is either the Adviser nor the Administrator otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or inadequate to protect the interest of the Adviser or Administrator therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in an Adviser/Administrator Material Adverse Effect;
(l) neither the Adviser nor the Administrator is, and upon the sale of the Shares contemplated under this Agreement and the application of the net proceeds therefrom as applicabledescribed in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses policies and instruments in all material respects; there are no claims by the Adviser or the failure Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of such Governmental Licenses to be in full force and effect would not, singly rights clause; neither the Adviser nor the Administrator has been refused any insurance coverage sought or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableapplied for; and neither the Adviser nor the Administrator has received any notice of proceedings relating reason to the revocation believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(jn) Each neither the Adviser, the Administrator nor, to their knowledge, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and price of any security of the Administrator maintains data processing, communications and other technology systems sufficient Company to provide reasonable assurance that facilitate the sale of the Shares;
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iiio) the recorded accountability for assets Adviser is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have constitute an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(p) the Adviser has implemented a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(q) the Administrator has implemented a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator Administrator, as applicable, represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) the Adviser has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and the Administrator has been duly formed and is validly existing as a Delaware limited partnership and in good standing under the laws of the State of Delaware, each with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser has and the corporate Administrator had full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, as applicable; and each of the Adviser, the Adviser and Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an “Adviser Material Adverse Effect Effect” or an “Administrator Material Adverse Effect”, as applicable.respectively);
(cii) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(diii) There is there are no actionactions, suit or proceeding suits, claims, proceedings or, to the knowledge of the Adviser’s or Administrator’s knowledge, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, investigations pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting threatened to which the Adviser or the Administrator or, to the knowledge of the Adviser or the Administrator, any of their respective officers, partners, or members are or would be a party, or of which is required any of its properties are or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to be disclosed the Adviser or the Administrator, (A) have, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively, or which would reasonably be expected to materially and adversely affect (B) prevent the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which hereby;
(iv) neither the Adviser or nor the Administrator is a party (A) in violation of its limited liability company operating agreement or limited partnership operating agreement, respectively, or (B) in breach of which (nor has any event occurred that, with notice or lapse of their respective property time or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their businessboth, would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effect, as applicable.
(eviolation) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan bank loan, credit agreement or credit agreementother evidence of indebtedness, note, lease or other agreement or instrument to which the Adviser or the Administrator is a party party, or by which it (C) in contravention of any law, regulation or rule or any of them may be bounddecree, judgment or order applicable to which any of the property or assets of the Adviser or the Administrator is subject (collectivelyAdministrator, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses with respect to clause (iiB) and (iii) onlyC), for to the extent that any such violations breach, violation or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and respectively;
(v) the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and Agreement, the consummation of the transactions contemplated herein hereby and therein thereby and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by will not (A) violate the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the limited partnership operating agreement of the Administrator, respectively; nor will such action or (B) result in any violation breach of (nor has any applicable lawevent occurred that, statutewith notice, rulelapse of time or both, regulationwould reasonably be expected to result in any breach or violation) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan, credit agreement or decree other evidence of any governmentindebtedness, government instrumentality or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (C) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clause (B) and (C), to the extent that any such breach or violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively; and the execution, delivery and performance of their respective assetsthis Agreement, properties the Investment Advisory Agreement and the Administration Agreement and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach or operations.violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (D) the Adviser’s limited liability company operating agreement or the Administrator’s limited partnership operating agreement, (E) other organizational documents of the Adviser or the Administrator, (F) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator is a party or (G) any law, regulation, rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clauses (F) and (G), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(fvi) This this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The ; this Agreement, the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectivelyas applicable, enforceable against them in accordance provided, however, that the Adviser and the Administrator make no representations or warranties with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and limited by the discretion of the court before which any proceeding therefor may be brought.Enforceability Exceptions;
(gvii) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a are true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light respects;
(viii) each of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by has the appropriate financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, General Disclosure Package and the Prospectus and under this Agreement and with respect to the Investment Advisory Agreement and the Administration Agreement, as applicable;
(ix) subsequent to the date of the most recent financial statements contained in the Registration Statement, General Disclosure Package and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization, prospects, or regulatory status of the Adviser or Administrator, respectively;
(x) each of the Adviser and the Administrator has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule, and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents or make such filings would not reasonably be expected to, singly or in the aggregate, result in to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablerespectively; the Adviser and the Administrator are not in compliance with violation of, or in default under, nor have the terms and conditions Adviser or the Administrator received notice of all any proceedings relating to revocation or modification of any such Governmental LicensesConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where the failure so to comply such revocation or modification would not, singly individually or in the aggregate, result in reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and respectively;
(xi) neither the Adviser nor the Administrator has received any notice of proceedings relating Administrator, nor, to the revocation knowledge of the Adviser or modification the Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any such Governmental Licenses whichaction designed, singly or in under the aggregateExchange Act, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect the stabilization or an Administrator Material Adverse Effect, as applicable.manipulation of the price of any security of the Company to facilitate the sale of the Securities;
(jxii) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (iA) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (iiB) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Company, the Adviser or the Adviser Administrator, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, respectively;
(xiii) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(xiv) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (B) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(xv) the operations of the Adviser and the Administrator are and have been conducted at all times in compliance in all material respects with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transaction Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), as amended, the applicable anti-money laundering statutes of jurisdictions where the Adviser or Administrator conduct business, and the rules and regulations promulgated thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser and Administrator Anti-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 Adviser or the Administrator with respect to the Adviser and Administrator Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser and the Administrator, threatened;
(xvi) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the knowledge of the Adviser or the Administrator, any controlled affiliate, agent or representative thereof is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the FCPA or of the U.K. Bribery Act, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment, giving or receipt of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the U.K. Bribery Act or other applicable anti-corruption laws, and the Adviser and the Administrator and any affiliate of the Adviser or the Administrator have conducted their businesses in compliance with the FCPA, the U.K. Bribery Act and other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with applicable anti-corruption laws; and
(xvii) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the Adviser’s nor the Administrator’s knowledge, any or controlled affiliate, representative or agent thereof (A) is, or is controlled or 50% or more owned by or is acting on behalf of, a Sanctioned Person, (B) is located, organized or resident in a Sanctioned Territory or (C) will directly or knowingly indirectly (which shall not include anything done with any such proceeds after they have been received by any affiliate of the Underwriters) use the proceeds of the issuance and sale of Shares hereunder, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other person or entity in any manner to fund or facilitate any activities of or business with any Sanctioned Person or any Sanctioned Territory, at the time of such funding or facilitation or that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as an underwriter, adviser, investor or otherwise). Neither the Adviser nor the Administrator has knowingly engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or the Administrator have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories. Except as has been disclosed to the Underwriters or is not material to the analysis under any Sanctions, neither the Adviser nor the Administrator, nor any of the Adviser or the Administrator’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or any of its subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories.
Appears in 1 contract
Samples: Underwriting Agreement (Blackstone Secured Lending Fund)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters Underwriter as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator has been is a limited liability company duly organized formed and is validly existing in good standing under the laws of the State of Delaware and has the Delaware, with limited liability company power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement, the General Disclosure Package Pre-Pricing Prospectus and the Prospectus Prospectus, and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity limited liability company and is in good standing in under the laws of each other jurisdiction in which such qualification is required, whether by reason the conduct of its business or the ownership or leasing of its property or the conduct of businessrequires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in an Adviser Material Adverse Effect prevent such entity from carrying out its obligations under the Advisory Agreement or an the Administration Agreement, as applicable (a “Adviser/Administrator Material Adverse Effect, as applicable”).
(cb) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement as an investment adviser for the Company as contemplated by in the Registration Statement, the General Disclosure Package Pre-Pricing Prospectus and the Prospectus. There does not exist any proceeding have been no proceedings initiated or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceedingthreatened, which might would adversely affect the registration of the Adviser with the Commission.
(c) Each of this Agreement and the Advisory Agreement has been duly authorized, executed and delivered by the Adviser. Assuming due authorization, execution and delivery thereof by the Company, the Advisory Agreement constitutes the legal, valid and binding agreements of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(d) There Each of this Agreement and the Administration Agreement has been duly authorized, executed and delivered by the Administrator. Assuming due authorization, execution and delivery thereof by the Company, the Administration Agreement constitutes the legal, valid and binding agreements of the Administrator, enforceable against the Administrator in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Administrator’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(e) Each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Advisory Agreement and, with respect to the Administrator only, the Administration Agreement.
(f) The description of the Adviser and the Administrator contained in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects. Neither the Adviser nor the Administrator is aware that any executive, key employee or significant group of employees of the Company, if any, the Adviser or the Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator
(g) Subsequent to the respective dates as of which information is given in the Pre-Pricing Prospectus and the Prospectus, (i) there has not been any material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser or the Administrator, whether or not arising from transactions in the ordinary course of business; and (ii) the Adviser and the Administrator have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business and have not entered into any material transaction or agreement not in the ordinary course of business other than (i) as may be incurred hereunder or entered into herewith or (ii) as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus.
(h) Other than as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, no action, suit or proceeding orby or before any federal or state court or governmental agency, to authority or body or any arbitrator involving the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, property is pending or, to the knowledge of the Adviser or the Administrator, threatenedas applicable, against or affecting is threatened which, if resolved adversely to the Adviser or the Administrator which is required to be disclosed in the Registration StatementAdministrator, the General Disclosure Package or the Prospectus (other than as disclosed therein)applicable, or which would reasonably be expected to result in a judgment, decree or order having an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation .
(i) Each of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or and the Administrator is a party or of which any of their respective has such Permits as are necessary to own its property or and assets is and to conduct its business in the subject which are not manner described in the Registration Statement and/or Pre-Pricing Prospectus and the Prospectus, including ordinary routine litigation incidental except where the failure to their businessobtain such licenses, permits or authorizations would not reasonably be expected to result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(e) None of ; neither the Adviser, Adviser nor the Administrator has received any notice of proceedings relating to the revocation or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be boundmodification of, or to which any non-compliance with, and such Permits which, if the subject of the property an unfavorable decision, ruling or assets of the Adviser or the Administrator is subject (collectivelyfinding, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and .
(j) Neither the execution, delivery and or performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder of this Agreement, nor the execution, delivery or performance by the Adviser and under the Investment Administrator of the Advisory Agreement and the Administration Agreement do not and Agreement, respectively, (i) conflicts or will not, whether with or without the giving of notice or passage of time or both, conflict with or constitutes or will constitute a breach ofof the certificate of formation or limited liability company operating agreement of the Adviser or the Administrator, as applicable, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse EffectAdministrator, as applicable, nor will such action result in pursuant to the terms of, any violation of the provisions of the bylaws agreement, indenture, lease or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over other instrument to which the Adviser or the Administrator is a party or by which it or any of their respective assetsits properties may be bound, properties or operations.
(fiii) This Agreementviolates or will violate any federal or state statute, the Investment Advisory Agreement and the Administration Agreement have been duly authorizedlaw or regulation or judgment, executed and delivered by injunction, order or decree applicable to the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyexcept, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject respect to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and clause (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”iii), except to the extent that such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess contravention would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware Administrator, nor their respective affiliates, has taken, directly or indirectly, any action designed to or that (i) would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any executive, key employee or significant group of employees security of the Company (if any), to facilitate the sale of the Securities. Any certificate signed by any officer of the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (and delivered to the extent any such person devotes substantive attention to matters involving Representative or counsel for the Company) plans to terminate employment Underwriters in connection with the Company, offering of the Securities shall be deemed a representation and warranty by the Adviser or and the Administrator, as applicable, or (ii) any such executive or key employee is subject as to any non-competematters covered therein, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableeach Underwriter.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator Administrator, as applicable, represents and warrants to, and agrees with, the Initial Purchasers that:
(a) the Adviser has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and the Administrator has been duly formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware, each with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Pricing Disclosure Package and the Prospectus Offering Memorandum and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser has and the corporate Administrator had full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, as applicable; and each of the Adviser, the Adviser and Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an “Adviser Material Adverse Effect Effect” or an “Administrator Material Adverse Effect”, as applicable.respectively);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Pricing Disclosure Package and the ProspectusOffering Memorandum. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, proceedings, or proceeding or, to the knowledge of the Adviser’s or Administrator’s knowledge, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, investigations pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting threatened to which the Adviser or the Administrator or, to the knowledge of the Adviser or the Administrator, any of their respective officers, partners, or members are or would be a party, or of which is required any of its properties are or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to be disclosed the Adviser or the Administrator, (A) have, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively, or which would reasonably be expected to materially and adversely affect (B) prevent the consummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is (i) in this Agreementviolation of its respective limited liability company operating agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate (ii) in breach of all pending legal (nor has any event occurred which with notice, lapse of time or governmental proceedings both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or (iii) in contravention of which any of their respective property law, regulation or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator rule or any of their respective subsidiaries is (i) in violation of its organizational decree, judgment or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument order applicable to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectivelyAdministrator, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations breach, violation or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicablerespectively; and the execution, delivery and performance of this Agreement and the Investment Advisory Agreement and the Administration Agreement and consummation of the transactions contemplated hereby and thereby, will not (i) violate the limited liability company operating agreement of the Adviser or the limited liability company operating agreement of the Administrator, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clause (ii) and (iii), to the extent that any such breach, violation or contravention would not have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(e) the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach of violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that both would not reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Adviser’s limited liability company operating agreement or the Administrator’s limited liability company operating agreement, (ii) other organizational documents of the Adviser or the Administrator, (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or (iv) any law, regulation, rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clauses (iii) and (iv), to the extent that any such breach, violation or contravention would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.;
(f) This this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The ; this Agreement, the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectivelyas applicable, enforceable against them in accordance provided, however, that the Adviser and the Administrator make no representations or warranties with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and limited by the discretion of the court before which any proceeding therefor may be brought.Enforceability Exceptions;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Pricing Disclosure Package and the Prospectus do not contain any untrue statement of a Offering Memorandum are true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light respects;
(h) each of the circumstances Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in which they were madethe Pricing Disclosure Package and the Offering Memorandum and under this Agreement and with respect to the Investment Advisory Agreement and the Administration Agreement, not misleading.as applicable;
(i) The subsequent to the date of the most recent financial statements contained in the Pricing Disclosure Package and the Offering Memorandum, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization, prospects or regulatory status of the Adviser or Administrator, respectively;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents or make such filings would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablerespectively; the Adviser and the Administrator are not in compliance with violation of, or in default under, nor have the terms and conditions Adviser or the Administrator received notice of all any proceedings relating to revocation or modification of any such Governmental LicensesConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where the failure so to comply such revocation or modification would not, singly individually or in the aggregate, result in have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and respectively;
(k) neither the Adviser nor the Administrator has received any notice of proceedings relating Administrator, nor, to the revocation knowledge of the Adviser or modification the Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any such Governmental Licenses whichaction designed, singly or in under the aggregateExchange Act, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect the stabilization or an Administrator Material Adverse Effect, as applicable.manipulation of the price of any security of the Company to facilitate the sale of the Securities;
(jl) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Company, the Adviser or the Adviser Administrator, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, respectively;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) neither the Adviser nor the Administrator, nor, to the knowledge of the Adviser or the Administrator, any director, officer, employee or affiliate of the Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Adviser and the Administrator, and to the knowledge of the Adviser and the Administrator, their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with applicable anti-corruption laws; and
(p) neither the Adviser nor the Administrator, nor, to the Adviser’s or the Administrator’s knowledge, any director, officer employee, affiliate or agent of the Adviser or the Administrator (i) is, or is controlled or 50% or more owned by or is acting on behalf of, an individual or entity that is currently the subject of any Sanctions, (ii) is located, organized or resident in a Sanctioned Territory or (iii) will directly or indirectly (which shall not include anything done with any such proceeds after they have been received by any affiliate of the Initial Purchasers) use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any joint venture partner, person or entity in any manner to fund or facilitate any activities or business of or with any Sanctioned Person or vessel that is the subject of Sanctions or in any Sanctioned Territory, at the time of such funding or facilitation or that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as an initial purchaser, advisor, investor or otherwise). Except as has been disclosed to the Initial Purchasers, neither the Adviser nor the Administrator, nor any of the Adviser or the Administrator’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Territory, nor does the Adviser or any of its subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Territories.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited partnership and Delaware limited liability company, respectively, and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, constitute a material adverse change in the business, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in an Adviser prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, a “Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.Change”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or aggregate, a Material Adverse Change, or (B) preventing the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, constitute a default under or give the holder of any indebtedness (or person acting on such holder’s behalf), the right to require the repurchase, redemption or repayment of all or part of such indebtedness under) (i) its limited partnership agreement or limited liability company operating agreement, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in an Adviser constitute a Material Adverse Effect or Administrator Material Adverse EffectChange, as applicable; and the execution, delivery and performance of this AgreementAgreement (and with respect to the Administrator only, the Investment Advisory Agreement Administration Agreement) and the Administration Agreement and the consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in the Registration Statement any breach of violation of or constitute a default under (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statementnor constitute any event which with notice, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage lapse of time or both, conflict with both would reasonably be expected to result in any breach or violation of or constitute a breach ofdefault under) (i) the limited partnership agreement or limited liability company operating agreement, as applicable, or default under, (ii) or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets other organizational documents of the Adviser or the Administrator pursuant or (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over which the Adviser or the Administrator is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.other applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not have a Material Adverse Change;
(fe) This Agreement, the Investment Advisory this Agreement and the Administration Agreement have has been duly authorized, executed and delivered by the Adviser or and the Administrator; the Investment Advisory Agreement has been duly authorized, as applicable. The executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as (i) the enforcement enforceability thereof may be subject to (i) limited by bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and (ii) general rights to indemnification and contribution may be limited to equitable principles of equity and general applicability or by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration StatementProspectus is true, accurate and complete in all material respects;
(g) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement and, with respect to the Adviser only, the General Disclosure Package and Investment Advisory Agreement (and, with respect to the Prospectus do Administrator only, the Administration Agreement);
(h) subsequent to the date of the Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(i) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in an Adviser constitute a Material Adverse Effect or an Administrator Material Adverse Effect, as applicableChange; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser constitute a Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.Change;
(j) Each neither the Adviser, the Administrator nor any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to price of any differences. Each security of the Adviser and Company to facilitate the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches sale of applicable privacy laws.the Shares;
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser constitute a Material Adverse Effect Change;
(l) the Adviser is using its best efforts to develop and implement a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuate by it under the Investment Advisory Agreement are executed in accordance with its management’s general or an specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization; and
(m) the Administrator Material Adverse Effect, is using its best efforts to develop and implement a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (iii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (A) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (B) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Securities;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Adviser, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) neither the Adviser nor, to the knowledge of the Adviser, any director, officer, employee or affiliate of the Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the Foreign Corrupt Practices Act of 1977, as applicableamended, and the rules and regulations thereunder; and
(p) neither the Adviser, any director, officer or employee of the Adviser nor, to the knowledge of the Adviser, any affiliate or agent of the Adviser is currently the subject of any sanctions administered by OFAC; and the Adviser will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of or with any person or entity, or in any country or territory that, at the time of such financing is the subject of any sanctions administered by OFAC.
Appears in 1 contract
Samples: Underwriting Agreement (Pennantpark Investment Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator Administrator, as applicable, represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) the Adviser has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and the Administrator has been duly formed and is validly existing as a Delaware limited partnership and in good standing under the laws of the State of Delaware, each with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into execute and perform its obligations under deliver this Agreement; each of the Adviser has and the corporate Administrator had full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, as applicable; and each of the Adviser, the Adviser and Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an “Adviser Material Adverse Effect Effect” or an “Administrator Material Adverse Effect”, as applicable.respectively);
(cii) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(diii) There is there are no actionactions, suit or proceeding suits, claims, proceedings or, to the knowledge of the Adviser’s or Administrator’s knowledge, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, investigations pending or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting threatened to which the Adviser or the Administrator or, to the knowledge of the Adviser or the Administrator, any of their respective officers, partners, or members are or would be a party, or of which is required any of its properties are or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to be disclosed the Adviser or the Administrator, (A) have, individually or in the Registration Statementaggregate, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively, or which would reasonably be expected to materially and adversely affect (B) prevent the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which hereby;
(iv) neither the Adviser or nor the Administrator is a party (A) in violation of its limited liability company operating agreement or limited partnership operating agreement, respectively, or (B) in breach of which (nor has any event occurred that, with notice or lapse of their respective property time or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their businessboth, would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effect, as applicable.
(eviolation) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan bank loan, credit agreement or credit agreementother evidence of indebtedness, note, lease or other agreement or instrument to which the Adviser or the Administrator is a party party, or by which it (C) in contravention of any law, regulation or rule or any of them may be bounddecree, judgment or order applicable to which any of the property or assets of the Adviser or the Administrator is subject (collectivelyAdministrator, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses with respect to clause (iiB) and (iii) onlyC), for to the extent that any such violations breach, violation or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and respectively;
(v) the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and Agreement, the consummation of the transactions contemplated herein hereby and therein thereby and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by will not (i) violate the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the limited partnership operating agreement of the Administrator, respectively; nor will such action or (ii) result in any violation breach of (nor has any applicable lawevent occurred that, statutewith notice, rulelapse of time or both, regulationwould reasonably be expected to result in any breach or violation) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan, credit agreement or decree other evidence of any governmentindebtedness, government instrumentality or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clause (ii) and (iii), to the extent that any such breach or violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively; and the execution, delivery and performance of their respective assetsthis Agreement, properties the Investment Advisory Agreement and the Administration Agreement and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach or operations.violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Adviser’s limited liability company operating agreement or the Administrator’s limited partnership operating agreement, (ii) other organizational documents of the Adviser or the Administrator, (iii) any indenture, mortgage, deed of trust, bank loan, credit agreement or other evidence of indebtedness, or other agreement or instrument to which the Adviser or the Administrator is a party or (iv) any law, regulation, rule or any decree, judgment or order applicable to the Adviser or the Administrator, except, with respect to clauses (iii) and (iv), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect or Administrator Material Adverse Effect, respectively;
(fvi) This this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The ; this Agreement, the Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectivelyas applicable, enforceable against them in accordance provided, however, that the Adviser and the Administrator make no representations or warranties with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and limited by the discretion of the court before which any proceeding therefor may be brought.Enforceability Exceptions;
(gvii) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a are true, accurate and complete in all material fact or omit to state a material fact necessary to make the statements therein, in light respects;
(viii) each of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by has the appropriate financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, General Disclosure Package and the Prospectus and under this Agreement and with respect to the Investment Advisory Agreement and the Administration Agreement, as applicable;
(ix) subsequent to the date of the most recent financial statements contained in the Registration Statement, General Disclosure Package and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization, prospects, or regulatory status of the Adviser or Administrator, respectively;
(x) each of the Adviser and the Administrator has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule, and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents or make such filings would not reasonably be expected to, singly or in the aggregate, result in to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicablerespectively; the Adviser and the Administrator are not in compliance with violation of, or in default under, nor have the terms and conditions Adviser or the Administrator received notice of all any proceedings relating to revocation or modification of any such Governmental LicensesConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where the failure so to comply such revocation or modification would not, singly individually or in the aggregate, result in reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and respectively;
(xi) neither the Adviser nor the Administrator has received any notice of proceedings relating Administrator, nor, to the revocation knowledge of the Adviser or modification the Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any such Governmental Licenses whichaction designed, singly or in under the aggregateExchange Act, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect the stabilization or an Administrator Material Adverse Effect, as applicable.manipulation of the price of any security of the Company to facilitate the sale of the Securities;
(jxii) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), or the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Company, the Adviser or the Adviser Administrator, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, respectively;
(xiii) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(xiv) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(xv) the operations of the Adviser and the Administrator are and have been conducted at all times in compliance in all material respects with all applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transaction Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), as amended, and the applicable anti-money laundering statutes of jurisdictions where the Adviser or Administrator conduct business, and the rules and regulations promulgated thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser and Administrator Anti-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 Adviser or the Administrator with respect to Adviser and Administrator Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser and the Administrator, threatened;
(xvi) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the knowledge of the Adviser or the Administrator, any controlled affiliate, agent or representative thereof is aware of or has taken any action, directly or indirectly, that would result in a violation by such entities or persons of the FCPA or of the U.K. Bribery Act, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment, giving or receipt of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the U.K. Bribery Act or other applicable anti-corruption laws, and the Adviser and the Administrator and any affiliate of the Adviser or the Administrator have conducted their businesses in compliance with the FCPA, the U.K. Bribery Act and other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with applicable anti-corruption laws; and
(xvii) neither the Adviser nor the Administrator, nor any director, officer or employee thereof, nor, to the Adviser’s or the Administrator’s knowledge, any or controlled affiliate, representative or agent thereof (i) is, or is controlled or 50% or more owned by or is acting on behalf of, a Sanctioned Person, (ii) is located, organized or resident in a Sanctioned Country or (iii) will directly or knowingly indirectly (which shall not include anything done with any such proceeds after they have been received by any affiliate of the Underwriters) use the proceeds of the offering of Securities hereunder, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other person or entity in any manner to fund or facilitate any activities of or business with any Sanctioned Person or any Sanctioned Country, at the time of such funding or facilitation or that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as an underwriter, adviser, investor or otherwise). Neither the Adviser nor the Administrator has knowingly engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, nor does the Adviser or the Administrator have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries. Except as has been disclosed to the Underwriters or is not material to the analysis under any Sanctions, neither the Adviser nor the Administrator, nor any of the Adviser or the Administrator’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, nor does the Adviser or any of its subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries.
Appears in 1 contract
Samples: Underwriting Agreement (Blackstone Secured Lending Fund)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters Agent as of the date of this Agreementhereof, as of the each Applicable Time, as of the Closing Date Time and as of each Option Closing Settlement Date, and agree with the Underwriters Agent as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and the Administrator and each of their respective subsidiaries has been duly organized and is validly existing and in good standing under the laws of the State of Delaware Delaware, and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the limited liability company power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, Adviser or the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of Neither the Adviser, Adviser nor the Administrator or nor any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and InstrumentsAdviser And Administrator Agreements”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Adviser And Administrator Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws certificate of incorporation or the limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operationsoperations except for such violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The This Agreement, the Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought, and (iii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and of the Administrator contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator each possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by each of them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are each in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(k) The Adviser and the Administrator hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses as described in the Registration Statement and the Prospectus, except where the failure to hold such licenses, certificates or permits would not result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect; the Adviser and the Administrator each own or possess rights to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Adviser and Administrator Intellectual Property”) necessary to carry on their businesses as described in the Registration Statement and the Prospectus in all material respects; none of the Adviser, the Administrator or any of their subsidiaries has infringed, and none of the Adviser, the Administrator or their subsidiaries has received notice of conflict with, any Adviser and Administrator Intellectual Property of any other person or entity, which infringement or conflict would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect. None of the technology employed by the Adviser or the Administrator has been obtained or is being used by the Adviser or the Administrator in violation of any contractual obligation binding on the Adviser, the Administrator, or any of their respective officers, directors or employees or otherwise in violation of the rights of any persons; neither of the Adviser or the Administrator has received any written or oral communications alleging that they have violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement and the Prospectus, would violate, infringe or conflict with, any of the Adviser and Administrator Intellectual Property of any other person or entity, except for such violations, infringements or conflicts that would not have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus and except as would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, neither of the Adviser or the Administrator knows of any infringement by others of Adviser and Administrator Intellectual Property owned by or licensed to the Adviser or the Administrator.
(l) Each of the Adviser and the Administrator is in compliance in all material respects with all presently applicable provisions of ERISA; no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Adviser and the Administrator would have any liability; the Adviser and the Administrator has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each “pension plan” for which the Adviser and the Administrator would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification.
(m) None of the Adviser, the Administrator, nor any of its subsidiaries, nor any director, officer, agent, employee or affiliate of the Adviser or the Administrator, nor any director, officer, agent or affiliate of any subsidiary of the Adviser or the Administrator nor, to the knowledge of the Adviser or the Administrator, any employee of any subsidiary of the Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of FCPA, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under any other applicable anti-bribery or anti-corruption laws, including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the any applicable anti-bribery or anti-corruption laws, and the Adviser, the Administrator, and their respective subsidiaries and affiliates have conducted their businesses in compliance with any applicable anti-bribery or anti-corruption laws and have instituted, maintained and enforced and will continue to maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Any certificate signed by any officer of the Adviser or the Administrator and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Adviser or the Administrator (as applicable), to the Agent as to the matters covered thereby.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Effective Time, as of the Closing Date date hereof, as of the time of purchase and as of each Option Closing Date, and agree with the Underwriters as followstime of any additional purchase that:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under this Agreement, the Investment Advisory Agreement; , the Administrator has the power Staffing Agreement and authority to execute and deliver and perform its obligations under the Administration Agreement, to the extent a party thereto; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement, Staffing Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is the would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which are would not described result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement and/or aggregate, an Adviser/Administrator Material Adverse Effect, or (B) preventing the Prospectusconsummation of the transactions contemplated hereby;
(d) neither the Adviser nor the Administrator is in breach or violation of, including ordinary routine litigation incidental to their businessor in default under (nor has any event occurred which with notice, lapse of time, or both would not reasonably be expected to result in an Adviser Material Adverse Effect any breach or an Administrator Material Adverse Effectviolation of, as applicable.
constitute a default under or give the holder of any indebtedness (e) None of the Adviseror person acting on such holder’s behalf), the Administrator right to require the repurchase, redemption or any repayment of their respective subsidiaries is all or part of such indebtedness under) (i) in violation the limited liability company operating agreement or other organizational documents of its organizational the Adviser or governing documents or the Administrator, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or the Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”)party, or (iii) in violation of under any federal, state, local or foreign law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas the case may be, judgment, order or decree except, in the case of with respect to clauses (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in constitute an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this AgreementAgreement (and, with respect to the Adviser only, the Investment Advisory Agreement and the Staffing Agreement and, with respect to the Administrator only, the Administration Agreement and the Staffing Agreement) and consummation of the transactions contemplated herein hereby and therein and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) the Registration Statement (including the issuance and sale limited liability company operating agreement or other organizational documents of the Securities and Adviser or the use Administrator, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the proceeds from Adviser or the sale of Administrator is a party, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Securities Adviser or the Administrator, as described in the Registration Statementcase may be, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”except, with respect to clauses (ii) and compliance (iii), to the extent that any such contravention would not constitute an Adviser/Administrator Material Adverse Effect;
(e) this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator with their respective obligations hereunder and under Administrator; the Investment Advisory Agreement and the Staffing Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Staffing Agreement have been duly authorized, executed and delivered by the Adviser or Administrator; the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance with their terms, except as the enforcement enforceability thereof may be subject to limited by (i) bankruptcy, insolvencyinsolvency (including, reorganizationwithout limitation, moratorium all laws relating to fraudulent transfers) or other similar laws now or thereafter in effect relating to affecting creditors’ rights generally and generally, (ii) general equitable principles of equity and (iii) limitation on rights to indemnification and contribution imposed by state or federal securities laws or the discretion of the court before which any proceeding therefor may be brought.policies underlying such law;
(gf) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement is true, accurate and complete in all material respects;
(g) each of a material fact the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement, the Investment Advisory Agreement, the Staffing Agreement and the Administration Agreement, as applicable;
(h) each of the Adviser and the Administrator owns or omit leases or has access to state a material fact all properties and assets as are necessary to make the statements thereinconduct of its operations as presently conducted, in light of the circumstances in which they were made, except as would not misleading.have an Adviser/Administrator Material Adverse Effect;
(i) The subsequent to the respective dates as to which information is given in the Registration Statement, Disclosure Package and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, capitalization or regulatory status of the Adviser or the Administrator, or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement, Administration Agreement or the Staffing Agreement, as appropriate;
(j) each of the Adviser and the Administrator possess such licenses issued by the appropriate has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the business now operated failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser/Administrator Material Adverse Effect; neither the Adviser or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received notice of any proceedings relating to revocation or modification of any such licenses, authorizations, consents or approvals or of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser/Administrator Material Adverse Effect;
(k) each Adviser and Administrator owns, or possesses adequate licenses or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Prospectus as being licensed by them it or which are necessary for the conduct of its businesses (collectively, “Governmental LicensesAdviser/Administrator Intellectual Property”), except where the failure so to possess own, license or have such rights would not reasonably be expected tonot, singly individually or in the aggregate, result in cause an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect; neither the Adviser nor the Administrator has received notice nor is either the Adviser nor the Administrator otherwise aware of any infringement of, or conflict with, asserted rights of third parties with respect to any Intellectual Property or of any facts or circumstances which would render any Adviser/Administrator Intellectual Property invalid or inadequate to protect the interest of the Adviser or Administrator therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, would result in an Adviser/Administrator Material Adverse Effect;
(l) neither the Adviser nor the Administrator is, and upon the sale of the Securities contemplated under this Agreement and the application of the net proceeds therefrom as applicabledescribed in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) each of the Adviser and the Administrator is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Adviser or the Administrator or their respective businesses, assets, employees, officers and directors are in full force and effect; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses policies and instruments in all material respects; there are no claims by the Adviser or the failure Administrator under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of such Governmental Licenses to be in full force and effect would not, singly rights clause; neither the Adviser nor the Administrator has been refused any insurance coverage sought or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicableapplied for; and neither the Adviser nor the Administrator has received any notice of proceedings relating reason to the revocation believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.;
(jn) Each neither the Adviser, the Administrator nor, to their knowledge, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the Adviser and price of any security of the Administrator maintains data processing, communications and other technology systems sufficient Company to provide reasonable assurance that facilitate the sale of the Securities;
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iiio) the recorded accountability for assets Adviser is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have constitute an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, ;
(p) the Adviser has implemented a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(q) the Administrator has implemented a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility for under the Administration Agreement are recorded as applicablenecessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as followsthat:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each each of the Adviser and the Administrator has been duly organized formed and is validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware and has the Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration StatementPricing Prospectus, the General Disclosure Package and the Prospectus and the Registration Statement and to enter into execute and perform its obligations under deliver this Agreement; the Adviser has the corporate full power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the full power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, Adviser and the Administrator and their respective subsidiaries is duly qualified to transact do business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of where the ownership or leasing of its property properties or the conduct of businessits business requires such qualification, except, in each case, except where the failure to qualify or be so qualified and in good standing would not not, individually or in the aggregate, have a material adverse effect on the business, financial condition, capitalization or regulatory status of such entity, or otherwise reasonably be expected to result in prevent such entity from carrying out its obligations under the Investment Advisory Agreement or the Administration Agreement, as applicable (collectively, an Adviser Material Adverse Effect or an “Adviser/Administrator Material Adverse Effect, as applicable.”);
(cb) The the Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the Investment Company Act or the 1940 Act applicable published rules and regulations thereunder from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, proceeding which might adversely affect the registration of the Adviser with the Commission.;
(dc) There is there are no actionactions, suit suits, claims, investigations or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Adviser or and the Administrator, threatened, against or affecting threatened to which either the Adviser or the Administrator which is required to or any of their officers, partners or members are or would be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property properties are or assets is would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not if determined adversely to the subject which are not described Adviser or the Administrator, as the case may be (i) have, individually or in the Registration Statement and/or the Prospectusaggregate, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.or (ii) prevent the consummation of the transactions contemplated hereby;
(ed) None of neither the Adviser, Adviser nor the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents limited liability company operating agreement or (ii) in default in the performance breach of (nor has any event occurred which with notice, lapse of time or observance of any obligation, agreement, covenant or condition contained both would reasonably be expected to result in any contract, breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreementagreement or other evidence of indebtedness, noteor any license, lease lease, contract or other agreement or instrument to which the Adviser or Administrator the Administrator, as the case may be, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation contravention of any law, statuteregulation or rule or any decree, rulejudgment or order applicable to the Adviser or the Administrator, regulationas applicable, judgment, order or decree except, in the case of clauses with respect to clause (ii) and (iii) only), for to the extent that any such violations or defaults that contravention would not reasonably be expected to result in have an Adviser Material Adverse Effect or Adviser/Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement Agreement, and with respect to the Administrator only, the Administration Agreement Agreement, and the consummation of the transactions contemplated herein hereby and therein and in thereby, will not (i) violate the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or the Administrator, respectively; nor will such action as applicable, or (ii) result in any breach of (nor has any event occurred which with notice, lapse of time or both would reasonably be expected to result in any breach or violation) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser or the Administrator, as the case may be, is a party or (iii) contravene any law, regulation or rule or any decree, judgment or order applicable to the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to the extent that any such contravention would not have a Adviser/Administrator Material Adverse Effect;
(e) the execution, delivery and performance of this Agreement, and with respect to the Adviser only, the Investment Advisory Agreement, and with respect to the Administrator only, the Administration Agreement, and consummation of the transactions contemplated hereby and thereby, will not conflict with, result in any breach of violation of or constitute a default under (nor constitute any applicable lawevent which with notice, statutelapse of time or both would reasonably be expected to result in any breach or violation of or constitute a default under) (i) its limited liability company operating agreement, rule(ii) other organizational documents of the Adviser or the Administrator, regulation(iii) any indenture, judgmentmortgage, orderdeed of trust, writ bank loan or decree credit agreement or other evidence of indebtedness, or any governmentlicense, government instrumentality lease, contract or court, domestic other agreement or foreign, having jurisdiction over instrument to which the Adviser or the Administrator is a party or (iv) any federal, state, local or foreign law, regulation or rule or any of their respective assetsdecree, properties judgment or operations.order applicable to the Adviser or the Administrator, as the case may be, except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not have an Adviser/Administrator Material Adverse Effect;
(f) This this Agreement has been duly authorized, executed and delivered by the Adviser and the Administrator; the Investment Advisory Agreement has been duly authorized, executed and delivered by the Adviser; and the Administration Agreement has been duly authorized, executed and delivered by the Administrator; this Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are constitute valid and legally binding obligations agreements of the Adviser or and the Administrator, respectively, enforceable against them in accordance provided, however, that each of the Adviser and Administrator makes no representation or warranty with their terms, except as respect to the enforcement thereof validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and/or contribution or enforceability of any obligations that may be subject to (i) limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or thereafter in effect relating to or affecting creditors’ rights generally and (ii) by general principles of equity and the discretion of the court before which any proceeding therefor may be brought.equitable principles;
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions description of the Adviser and the Administrator contained in the Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(h) each of the Adviser and the Administrator has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Pricing Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with respect to the Adviser only, the Investment Advisory Agreement and, with respect to the Administrator only, the Administration Agreement;
(i) subsequent to the date of the Registration Statement, the General Disclosure Package Pricing Prospectus and the Prospectus do Prospectus, there has not contain been any untrue statement of material adverse change, or any development involving a prospective material fact or omit to state a material fact necessary to make the statements thereinadverse change, in light the business, financial condition, capitalization, prospects or regulatory status of the circumstances in which they were madeAdviser or the Administrator, not misleading.or that would otherwise prevent the Adviser or the Administrator from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement, as appropriate;
(ij) The each of the Adviser and the Administrator possess such licenses issued by the appropriate has all Consents and has made all necessary filings required under any federal, state, local or foreign regulatory agencies law, regulation or bodies rule and has obtained all necessary Consents from other persons, in order to conduct the business now operated by them (“Governmental Licenses”)its business, except where the failure so to possess obtain such Consents would not reasonably be expected to, singly or in the aggregate, result in have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor or the Administrator is in violation of, or in default under, nor has the Adviser or the Administrator received any notice of any proceedings relating to the revocation or modification of any such Governmental Licenses whichConsent or any federal, singly state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser or the Administrator, except where such revocation or modification would not, individually or in the aggregate, if the subject of have an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.;
(k) Neither neither the Adviser, the Administrator, nor, to the knowledge of the Adviser nor or the Administrator Administrator, any of their respective partners, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, under the Exchange Act, to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares;
(l) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or executive, key employee or significant group of employees is subject to any non-competenoncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser Adviser, except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Adviser/Administrator Material Adverse Effect;
(m) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(n) the Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting principles and to maintain accountability for the Company’s assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(o) the operations of the Adviser and the Administrator are and have been conducted at all times in material compliance with Anti-Money Laundering Laws;
(p) neither the Adviser, the Administrator, any director, officer or employee of the Advisor or the Administrator nor, to the knowledge of the Adviser or the Administrator, any agent or affiliate of the Advisor or the Administrator has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as applicableamended, or any applicable law or regulation thereunder, or committed an offence under the Xxxxxxx Xxx 0000 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; and
(q) neither the Adviser, the Administrator, any director, officer or employee of the Adviser or the Administrator nor, to the knowledge of the Adviser or the Administrator, any affiliate or agent of the Adviser or the Administrator is currently the subject or target of any sanctions administered or enforced by the U.S. government (including, without limitation, OFAC or the U.S. Department of State and including, without limitation, the designation as a “specially designed national” or “blocked person”), nor is the Adviser or the Administrator located, organized or resident in a country or territory that is the subject or target of applicable sanctions laws, including, without limitation, a Sanctioned Country in violation of applicable law. The Adviser and the Administrator have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of applicable sanctions laws or with any Sanctioned Country except as permitted by applicable law.
Appears in 1 contract
Samples: Underwriting Agreement (PennantPark Floating Rate Capital Ltd.)
Representations and Warranties of the Adviser and the Administrator. The Adviser and the Administrator, jointly and severally, represent and warrant to the Underwriters as of the date of this Agreement, as of the Applicable Time, as of the Closing Date and as of each Option Closing Date, and agree with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the financial condition, or in the earnings, business affairs, operations or regulatory status of the Adviser, the Administrator or any of their respective subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a Company Material Adverse Effect, would otherwise reasonably be expected to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement (an “Adviser Material Adverse Effect”) or would otherwise reasonably be expected to prevent the Administrator from carrying out its obligations under the Administration Agreement (an “Administrator Material Adverse Effect”).
(b) Each of the Adviser and Adviser, the Administrator and each of their respective subsidiaries has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under the Investment Advisory Agreement; the Administrator has the power and authority to execute and deliver and perform its obligations under the Administration Agreement; and each of the Adviser, the Administrator and their respective subsidiaries is duly qualified to transact business as a foreign entity and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of ownership or leasing of its property or the conduct of business, except, in each case, except where the failure to qualify or be in good standing would not otherwise reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(c) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement for the Company as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit or proceeding or, to the knowledge of the Adviser, the Administrator or any of their respective subsidiaries, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser or the Administrator, threatened, against or affecting the Adviser or the Administrator which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser or the Administrator is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to their business, would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(e) None of the Adviser, the Administrator or any of their respective subsidiaries is (i) in violation of its organizational or governing documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser or Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the Adviser or the Administrator is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser and the Administrator with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser or the Administrator pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the bylaws or limited liability company operating agreement of the Adviser or Administrator, respectively; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or the Administrator or any of their respective assets, properties or operations.
(f) This Agreement, the Investment Advisory Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Adviser or the Administrator, as applicable. The Investment Advisory Agreement and the Administration Agreement are valid and binding obligations of the Adviser or the Administrator, respectivelyas applicable, enforceable against them in accordance with their terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser or the Administrator of their respective its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date0000 Xxx.
(h) The descriptions of the Adviser and the Administrator contained in the Registration Statement, the General Disclosure Package and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(i) The Adviser and the Administrator possess such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them (“Governmental Licenses”), except where the failure so to possess would not reasonably be expected to, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; the Adviser and the Administrator are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; all of the Governmental Licenses are valid and in full force and effect, except where when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and neither the Adviser nor the Administrator has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
(j) Each of the Adviser and the Administrator maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Each of the Adviser and the Administrator has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(k) Neither the Adviser nor the Administrator is aware that (i) any executive, key employee or significant group of employees of the Company (Company, if any), the Adviser (to the extent any such person devotes substantive attention to matters involving the Company) or the Administrator (to the extent any such person devotes substantive attention to matters involving the Company) Administrator, as applicable, plans to terminate employment with the Company, the Adviser or the Administrator, as applicable, Administrator or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable.
Appears in 1 contract
