Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter that: (a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. (b) 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission. (c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. (d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency. (e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law. (f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement. (g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading. (h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations. (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. (j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement. (k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares. (l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 6 contracts
Samples: Underwriting Agreement (Blackrock Municipal Target Term Trust Inc), Underwriting Agreement (Blackrock New York Insured Muncipal 2008 Term Trust Inc), Underwriting Agreement (Blackrock California Insured Municipal 2008 Term Trust Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Underwriters as follows:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) 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 Advisory Investment Management Agreement for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, to the best of the Adviser's knowledge after reasonable investigation, or any facts or circumstances the existence of which could lead to any proceeding which should reasonably be expected to have a material adverse might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) ), but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(d) The Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body.
(e) Neither the execution, delivery or performance of this Agreement or the Advisory Investment Management Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation corporate charter or bylawsby-laws, or other organizational documents, of the Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default would not have a material adverse effect on the financial condition, business, properties, net assets or result of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) where such conflict, breach, default or (B) as should violation would not reasonably be expected to have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement.
(ef) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Investment Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(fg) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Investment Management Agreement.
(gh) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Adviser or the Fund and that is required to be disclosed in the Registration Statement or the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 5 contracts
Samples: Underwriting Agreement (Nuveen Dividend Advantage Municipal Fund 3), Underwriting Agreement (Nuveen Ohio Dividend Advantage Municipal Fund 2), Underwriting Agreement (Nuveen Maryland Dividend Advantage Municipal Fund 2)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited liability company duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over or conflicts or will conflict with or constitutes or will constitute a breach of or a default under the certificate of incorporation or by-laws, or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agencyagency except for (a) an Order of the Securities and Exchange Commission, dated August 17, 1988 and (b) an Order of the Federal Communications Commission, dated August 21, 1992.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Adviser and its subsidiaries, taken as a whole, and that is required to be disclosed in the Registration Statement or in the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus (and any amendment or supplement thereto), termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in Adviser; it being understood that the offering Underwriters include certain affiliates of the SharesAdviser and that stabilization or other activity by you shall not be deemed to be violative of this representation.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (Gabelli Global Multimedia Trust Inc), Underwriting Agreement (Gabelli Equity Trust Inc), Underwriting Agreement (Gabelli Utility Trust)
Representations and Warranties of the Adviser. The Adviser hereby represents and warrants to each Underwriter thatas of the date hereof:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this 2.1 This Agreement and the Advisory Agreement.
(b) 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have has been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties theretoCompany and the Dealer Manager, each constitutes the is a legal, valid and legally binding agreement of the Adviser, Adviser enforceable against the Adviser 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 Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other moratorium or similar laws relating to or affecting creditors' ’ rights generally generally, and by general equitable principles whether enforcement is considered principles, and except to the extent that the enforceability of the indemnity provisions contained in a proceeding in equity or at lawSection 12 of this Agreement may be limited under applicable securities laws.
(f) 2.2 The Adviser has is a limited liability company duly organized and validly existing under the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description laws of the Adviser State of Delaware, and is in good standing with the State of Delaware Secretary of State, with full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied enter into this Agreement and comply in all material respects with to perform the provisions transactions contemplated hereby.
2.3 Except for registration of the 1933 Act, the 1940 Act, Adviser under the Advisers Act, no consent, approval, authorization or other order of any governmental authority is required in connection with the Rules execution or delivery by the Adviser of this Agreement.
2.4 There are no actions, suits or proceedings pending, or to the knowledge of the Adviser, threatened against the Adviser at law or in equity or before or by any federal or State commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would have any material adverse change in the condition, financial or otherwise, results of operations or cash flows of the Adviser that individually or in the aggregate would materially and Regulations adversely affect the Adviser such that the Adviser would be prevented from carrying out its business, performing its obligations under this Agreement or affecting the validity or enforceability of this Agreement (an “Adviser Material Adverse Effect”).
2.5 The Adviser is not in violation of its certificate of formation or its limited liability company agreement and the Advisers Act Rules execution and Regulations delivery of this Agreement, the consummation of the transactions herein contemplated and did not and compliance with the terms of this Agreement by the Adviser will not contain an untrue statement conflict with, violate the terms of or constitute a default under (a) its certificate of formation or limited liability company agreement, (b) any indenture, mortgage, deed of trust, lease or other material fact agreement or omit instrument to state which the Adviser is a material fact required party or by which it may be bound, (c) any law, order, rule or regulation applicable to be stated therein the Adviser or necessary to make (d) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the statements therein (Adviser or its assets, properties or operations, except, in the case of clauses (b), (c) and (d), for such violations or defaults that, individually or in the Prospectusaggregate, would not result in light of the circumstances under which they were made) not misleadingan Adviser Material Adverse Effect.
(h) 2.6 The Advisory Agreement complies in all material respects with all applicable provisions of agreements to which the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed Adviser is a party which are described in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement are valid and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission enforceable in all material respects with by the provisions Adviser except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and, to the knowledge of the 1933 ActAdviser, the 1940 Act and the Rules and Regulations. The Commission has no party thereto is in breach or default under any of such agreements, except where such breach or default would not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectushave an Adviser Material Adverse Effect.
Appears in 3 contracts
Samples: Follow on Dealer Manager Agreement (CION Investment Corp), Dealer Manager Agreement (CION Investment Corp), Dealer Manager Agreement (CION Investment Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material material, adverse effect affect on the ability condition (financial or other), general affairs, business, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and or the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Effect on the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation partnership agreement or bylaws, bylaws or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Aii) for such conflict, breach, default, violation or (B) as should lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment .
(j) None of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability this Agreement nor any of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (First Trust Value Line Dividend Fund), Underwriting Agreement (Energy Income & Growth Fund), Underwriting Agreement (First Trust Value Line R & Ibbotson Equity Allocation Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatof the Agents as of the date hereof and as of each Applicable Time and agrees with each of the Agents as follows:
(a) The Adviser has been duly organized, is a corporation duly incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate and has the requisite power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or to qualify does be in good standing would not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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 Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Advisory Investment Management Agreement for as an investment adviser to the Trust Company, as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances, the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Adviser.
(d) The Investment Management Agreement has been duly authorized, executed and delivered by the Adviser and is a valid and binding obligation of the Adviser and enforceable against the Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Company or any subsidiary of the Company except in accordance with the applicable provisions of the Investment Company Act and the Advisers Act. The Adviser is not aware that any executive, key employee or significant group of employees of the Adviser plans to terminate employment with the Adviser.
(f) The Adviser 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, as applicable.
(g) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of formation or limited liability company agreement of the Adviser or any agreement or other instrument binding upon the Adviser that is material to the Adviser, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Adviser of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Placement Shares.
(h) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser (an “Adviser Material Adverse Effect” and together with a Company Material Adverse Effect, a “Material Adverse Effect”).
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the Adviser, Adviser is a party or to which any of the properties of the Adviser 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 or on the power or ability of the Adviser 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 (or any amendment or supplement to either of them) but and are not so described.
(j) Subsequent to the respective dates as of which information is given in each of the Registration Statement and the Prospectus, (i) the Adviser has not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Adviser has not purchased any of its outstanding limited liability company interests, nor declared, paid or otherwise made any dividend or distribution of any kind on its limited liability company interests other than ordinary and customary dividends; and (iii) there has not been any material change in the limited liability company interests, short-term debt or long-term debt of the Adviser, except as described as required in each of the Registration Statement and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or that should reasonably be expected foreign regulatory authorities necessary to conduct its business, and the Adviser has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the ability of Adviser, except as described in the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(gl) The description of the Adviser contained in the Registration Statement and the Prospectus (does not, and prior to the time of purchase will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (therein, in the case of the Prospectus, in light of the circumstances under in which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(jm) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Placement Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(n) The Adviser who maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with its management’s general or specific authorization and with the investment objectives, policies and restrictions of the Company and the applicable requirements of the Investment Company Act and the Code; (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP, to calculate net asset value, and to maintain asset accountability, and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with its management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(o) The Adviser is not underwriters aware that any executive, key employee or dealers significant group of employees of the Adviser 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 violation would not have a material adverse effect on the Adviser.
(p) Neither the Adviser nor any of the Adviser’s subsidiaries or affiliates, nor any director, officer, or employee of the Adviser, nor, to the Adviser’s knowledge, any agent or representative of the Adviser or of any of the Adviser’s subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or 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) to influence official action or secure an improper advantage; and the Adviser and its respective subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(i) Neither the Adviser nor any of the Adviser’s subsidiaries (collectively, the “Adviser Entity”) nor any director, officer, employee, agent, affiliate or representative of the Adviser Entity, is a Person that is, or is owned or controlled by a Person that is:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Adviser Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering of the Sharesoffering, whether as underwriter, advisor, investor or otherwise).
(liii) Each Prepricing Prospectus complied when filed The Adviser Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the Commission in all material respects with the provisions time of the 1933 Act, dealing or transaction is or was the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use subject of any Prepricing Prospectus or the Prospectus.Sanctions
Appears in 3 contracts
Samples: At Market Issuance Sales Agreement (Horizon Technology Finance Corp), At Market Issuance Sales Agreement (Horizon Technology Finance Corp), At Market Issuance Sales Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and,
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Realty Income Fund Inc), Underwriting Agreement (Neuberger Berman Realty Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Underwriters as follows:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(b) 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 Advisory Investment Management Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Investment Management Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsby-laws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Investment Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, terms except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principles of public policy and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Investment Management Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Adviser or the Trust and that is required to be disclosed in the Registration Statement or the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus (and any amendment or supplement thereto), termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Pilgrim Prime Rate Trust), Underwriting Agreement (Ing Prime Rate Trust)
Representations and Warranties of the Adviser. The Adviser NAM represents and warrants to to, and agrees with, each Underwriter thatas follows:
(a) The Adviser NAM has been duly formed and is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability condition (financial or otherwise), business, earnings or properties of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) The Adviser NAM is duly registered with the Commission as an investment adviser under the Advisers Act and NAM is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for and the Trust Fee Agreements as contemplated by the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto)and the Prospectus. There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration NAM has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Adviser with Advisers Act reasonably designed to prevent violation of the CommissionAdvisers Act and the Advisers Act Rules and Regulations by NAM and its supervised persons.
(c) There are no legal or governmental proceedings pending orNAM has full power and authority to enter into this Agreement, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Management Agreement and the Advisory Agreement.
(d) Neither Fee Agreements; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser NAM of its obligations under, this Agreement, the Management Agreement and the Advisory Agreement Fee Agreements have been duly and validly authorized by NAM; and this Agreement, the AdviserManagement Agreement, and this Agreement and the Advisory Agreement Fee Agreements have been duly executed and delivered by the Adviser NAM, and, assuming due authorization, execution and delivery by the other parties thereto, each such agreement constitutes the valid and legally binding agreement of the AdviserNAM, enforceable against the Adviser NAM in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's NAM’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto) and the Prospectus and under this Agreement, the Management Agreement and the Advisory AgreementFee Agreements, as applicable.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, 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 the Adviser or its property is pending or, to the best knowledge of the Adviser, threatened that (i) is required to be described in the Registration Statement, each Preliminary Prospectus and the Prospectus that is not so described as required, (ii) would reasonably be expected to have a material adverse effect on the ability of the Adviser to fulfill its obligations hereunder or under the Management Agreement and the Fee Agreements, as applicable or (iii) would reasonably be expected to have a material adverse effect, whether or not arising from transactions in the ordinary course of business, on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the 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 respective dates as of which information is given in each Preliminary Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change, whether or not arising from the ordinary course of business, in the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser and (ii) 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 as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) The Advisory Adviser possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect, whether or not arising from transactions in the ordinary course of business, on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(i) This Agreement, the Management Agreement complies and the Fee Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ij) Except 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 Management Agreement and the Fee Agreements, except such as disclosed have been made or obtained under the Act, the Exchange Act, the Advisers Act, the 1940 Act, the rules and regulations of FINRA 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 the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus.
(k) None of the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or the Management Agreement and the Fee Agreements nor the consummation by the Fund and the Adviser of the transactions herein or therein contemplated (including, without limitation, the consummation of the transactions on the terms contemplated by the Registration Statement, Preliminary Prospectus and the Prospectus), nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to, (i) the Organizational Documents of the Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser is a party or bound or to which its property is subject, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to the Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or any of its properties.
(l) Except as stated in this Agreement and as described in the Registration Statement, each Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might that would constitute or that would reasonably be expected to cause or result in violation of federal securities laws, in stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Fund or the Adviser who other than (i) such actions as taken by the Underwriters that are affiliates of the Fund or the Adviser; and (ii) transactions under the Dividend Reinvestment Plan, so long as such actions are in material compliance with all applicable law.
(m) In the event that the Fund 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 or will cause to be installed and maintained, 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 Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Adviser, threatened.
(o) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) Neither NAM nor, to the knowledge of NAM, any director, officer, agent, employee or affiliate of NAM is aware of or has taken any action in connection with NAM, 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, and NAM and, to the knowledge of NAM, its affiliates have conducted their businesses in compliance with the FCPA.
(q) Neither NAM nor, to the knowledge of NAM, any director, officer, agent, employee or affiliate of NAM is currently subject to any U.S. sanctions administered by OFAC; and NAM will not underwriters directly or dealers participating indirectly cause the Fund to use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen Build America Bond Opportunity Fund), Underwriting Agreement (Nuveen Build America Bond Opportunity Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected proceeding, which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred, which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(j) Each of the Adviser Agreements complies in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser's knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Real Estate Securities Income Fund Inc), Underwriting Agreement (Neuberger Berman Real Estate Securities Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Underwriters as follows:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) 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 Advisory Investment Management Agreement for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) ), but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(d) The Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body.
(e) Neither the execution, delivery or performance of this Agreement or the Advisory Investment Management Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation corporate charter or bylawsby-laws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(ef) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Investment Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(fg) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Investment Management Agreement.
(gh) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Adviser or the Fund and that is required to be disclosed in the Registration Statement or the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen Performance Plus Municipal Fund Inc), Underwriting Agreement (Nuveen Performance Plus Municipal Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited liability company duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties property or assets and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties property or assets or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or, to the Adviser's knowledge, any facts or circumstances the existence of which should could reasonably be expected lead to have a material adverse any proceeding, which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its property or assets is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser official, (ii) violates or will violate or conflicts or will conflict with or constitutes or will constitute a breach any provision of or a default under, the certificate of incorporation formation or bylaws, by-laws or other organizational documents, documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties property or assets or (iii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its property or assets may be bound, or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, terms except as rights to indemnity and contribution hereunder may be limited by under federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 ActActs, the Advisers Act, the Rules and Regulations Regulations, and the Advisers Act Rules and Regulations and such description did not not, as of the effective date of the Registration Statement and the date hereof, and will not not, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of the Prospectus, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Fund, and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement...
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and assets and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits permits, and to the Adviser's knowledge no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus (and any supplement thereto), termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in Adviser.
(k) Xxxxxxx X. Xxxxx is the offering validly appointed President of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with In the Commission event that the Fund or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof.
(m) This Agreement and the Investment Advisory Agreement comply in all material respects with the all applicable provisions of the 1933 1940 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending , the use of any Prepricing Prospectus or Advisers Act and the ProspectusAdvisers Act Rules and Regulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Royce Focus Trust Inc), Underwriting Agreement (Royce Value Trust Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser's knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Realty Income Fund Inc), Underwriting Agreement (Neuberger Berman Realty Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Sub-Adviser that:
: (ai) The Adviser it is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited registered or licensed as an investment adviser under the laws of all jurisdictions in which its activities require it to be so registered or licensed, (ii) it is duly organized and validly existing, and is authorized to enter into this Agreement and to perform its obligations hereunder and this Agreement has been duly executed and delivered by the Advisers Act, Adviser; (iii) it is either appropriately registered with the Advisers Act Rules CFTC as a CTA and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have is a material adverse affect on the registration member of the Adviser with NFA or is exempt or excluded from CFTC registration requirements; (iv) it will maintain each such registration, license or membership in effect at all times during the Commission.
(c) There are no legal term of this Agreement and will obtain and maintain such additional governmental, self-regulatory, exchange or governmental proceedings pending orother licenses, to the knowledge of the Adviser, threatened against the Adviser, that are approvals and/or memberships and file and maintain effective such other registrations as may be required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of enable the Adviser to perform its obligations under this Agreement; (v) this Agreement is enforceable against the Adviser in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (vi) neither the Advisory Agreement.
(d) Neither the execution, execution or delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser nor its performance of the transactions contemplated hereby its obligations hereunder shall conflict with, violate, breach or thereby (A) requires the Adviser to obtain constitute a default under any consentterm or provision of its constituent or governing documents or any indenture, approvalmortgage, authorization deed of trust, instrument, agreement or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument document to which the Adviser is a party or by which the Adviser it is bound or to which any of its properties may be bound, assets are subject or materially violates or will materially violate any material applicable statute, law, regulation or judgmentrule, injunctionregulation, order or decree other legal requirement applicable to the Adviser or any of its properties assets; and (vii) the most recent Registration Statement or will result in amendment, with respect to the creation or imposition disclosure about the Adviser, the Registration Statement contains, as of the date hereof, no untrue statement of any material lien, charge or encumbrance upon fact and does not omit any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 fact, which was required to be stated therein or necessary to make the statements therein (in the case of the Prospectuscontained therein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Guardian Variable Products Trust), Sub Advisory Agreement (Guardian Variable Products Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company, in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement and to execute and deliver this Agreement; the Prospectus (Adviser has full power and any amendment or supplement authority to either of them), execute and deliver the Investment Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, constitute a material adverse effect on change in the ability business, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Management Agreement and the Advisory Agreement.(collectively, a “Material Adverse Change”);
(b) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Advisory Investment Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might materially adversely affect on the registration of the Adviser with the Commission.;
(c) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser or any of its officers or members are or would be a party or of which any of their properties are or would be subject at law or in equity, that are required to be described 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 Statement aggregate, a Material Adverse Change, or (B) preventing the Prospectus consummation of the transactions contemplated hereby;
(d) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery result in any breach or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order violation of, constitute a default under or registration give the holder of any indebtedness (or filing withperson acting on such holder’s behalf), the Commissionright to require the repurchase, the NASDredemption or repayment of all or part of such indebtedness under) (i) its charter, any state securities commissionbylaws, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsformation, limited liability company operating agreement, or other organizational documents, of the Adviser as applicable, or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute a Material Adverse Change and would not adversely affect the consummation of the transactions contemplated hereby, and the execution, delivery and performance of this Agreement, and the Investment Management 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 of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on Material Adverse Change and would not adversely affect the ability consummation of the Adviser to perform its obligations under transactions contemplated hereby;
(e) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser Adviser, and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject to the qualification that (i) the enforceability of the Trust's obligations hereunder and thereunder thereof may be limited by bankruptcy, fraudulent conveyancereorganization, insolvency, reorganizationmoratorium (including, moratoriumwithout limitation, and other all laws relating to fraudulent transfers) or similar laws now or thereafter in effect affecting creditors' ’ rights generally and (ii) rights to indemnification and contribution may be limited by general equitable principles of general applicability whether enforcement is considered in a proceeding in of equity or at law.in law or by state or federal securities laws or the policies underlying such laws;
(f) The the description of the Adviser contained in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) the Adviser 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 (or any amendment or supplement thereto) and the Registration Statement and under this Agreement and the Advisory Investment Management Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.;
(h) The Advisory Agreement complies in all material respects with all applicable provisions subsequent to the date of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act Pre-Pricing Prospectus and the Advisers Act Rules and Regulations.Prospectus, there has not been any Material Adverse Change, or any development involving a prospective Material Adverse Change that would otherwise prevent the Adviser from carrying out its obligations under the Investment Management Agreement;
(i) Except as disclosed the Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in order to conduct its business, except where the failure to make such filings on or to obtain such Consents would not constitute a Material Adverse Change; the Adviser is not in violation of, or in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)aggregate, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have constitute a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Material Adverse Change;
(j) The the Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment of its partners, officers, affiliates or supplement thereto), except to the extent that the failure to so controlling persons have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and ;
(k) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, or the Adviser plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute a Material Adverse Change; and
(l) Each Prepricing Prospectus complied when filed the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Commission Company’s assets is permitted only in all material respects accordance with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 2 contracts
Samples: Underwriting Agreement (BlackRock Kelso Capital CORP), Underwriting Agreement (BlackRock Kelso Capital CORP)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, (iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc), Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Initial Purchaser as follows:
(a) The Adviser is a corporation limited liability company duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate 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 Disclosure Package and the Prospectus (and any amendment or supplement to either of them)Final Offering Memorandum, and is duly registered and qualified to conduct its do business as a foreign limited liability company and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not in the aggregate, have a material adverse effect on (i) the ability performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) the condition (financial or otherwise), earnings, or business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business (clauses (i) and (ii) together or individually with respect to the Adviser, an “Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect”).
(b) 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 Advisory Agreement for as investment adviser to the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Disclosure Package and the Final Offering Memorandum. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, The Adviser has full limited liability company power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement.
(d) Neither ; the execution, execution and delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject Agreement to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery ofthe Adviser, and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Agreement, have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement to the Adviser have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery hereof by the other parties theretoyou, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principles of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources and appropriately skilled personnel available to it necessary for the performance of its services and obligations as contemplated described in the Prospectus (or any amendment or supplement thereto) Disclosure Package and the Final Offering Memorandum and as contemplated under this Agreement and the Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser in the Registration Statement Disclosure Package and the Prospectus (and any amendment or supplement to either of them) Final Offering Memorandum complied and comply in all material respects with the provisions of the 1933 Act, Advisers Act and 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading. The Adviser is not aware that any executive, key employee or significant group of employees of the Adviser plans to terminate employment with the Company or the Adviser.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should threatened that would reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (Disclosure Package and any amendment or supplement thereto)the Final Offering Memorandum, except to the extent that where the failure to so obtain such licenses, permits or authorizations would not have should not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Material Adverse Effect. The Adviser has fulfilled and performed all its material obligations with respect to such licenses, permits or authorizations and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permitlicenses, except where permits or authorizations.
(h) Neither the revocationexecution, termination delivery or impairment performance of this Agreement by the Adviser or of the Advisory Agreement nor the consummation by the Adviser of the transactions herein contemplated or by the Adviser of the transactions therein contemplated: (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of formation or limited liability company operating agreement of the Adviser's rights under ; (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound, except for such permits should conflicts that would not reasonably be expected result in an Adviser Material Adverse Effect; or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to have a the Adviser or any of its properties or, other than pursuant to the terms of Section 5(h) hereof, will result in the creation or imposition of any material adverse effect on the ability lien, charge or encumbrance upon any property or assets of the Adviser pursuant to perform its obligations the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject, except to the extent for such violations, liens, charges or encumbrances that would not result in an Adviser Material Adverse Effect, it being understood and agreed that for purposes of this representation and warranty, the transactions contemplated under the Advisory AgreementAgreement do not include any prospective investment transactions generally authorized therein.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(j) The Adviser who are is not underwriters aware that (i) any of the Adviser’s executives, key employees or dealers participating significant group of employees plans to terminate employment with the Adviser or (ii) any such executive or key employee is subject to any noncompete, 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 constitute an Adviser Material Adverse Effect. Any certificate signed by any officer of the Adviser and delivered to the Initial Purchaser or its counsel in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to the Initial Purchaser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Purchase Agreement (Business Development Corp of America), Purchase Agreement (Business Development Corp of America)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and,
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Realty Income Fund Inc), Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each the Underwriter thatas follows:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing in good standing as a limited liability company under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does would not have a material material, adverse effect on the ability condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for and the Trust Accounting Agreement as contemplated by the Preliminary Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commissionand Prospectus.
(c) There are no legal or governmental proceedings pending orThe Adviser has full power and authority to enter into this Agreement, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Management Agreement and the Advisory Accounting Agreement.
(d) Neither ; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Management Agreement and the Advisory Accounting Agreement have been duly and validly authorized by the Adviser, ; and this Agreement, the Management Agreement and the Advisory Accounting Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus (or any amendment or supplement thereto) and Prospectus and under this Agreement, the Management Agreement and the Advisory Accounting Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed is required to be described in the Registration Statement Preliminary Prospectus and the Prospectus that is not so described as required, (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Management Agreement and the Advisory AgreementAccounting 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, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and Prospectus (exclusive of any supplement thereto).
(jg) Since the date as of which information is given in the Preliminary Prospectus and Prospectus, except as otherwise stated therein, (i) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Preliminary Prospectus and Prospectus.
(h) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Preliminary Prospectus (and any amendment or supplement thereto)Prospectus, except to the extent that where the failure to so have should hold any such permit does not reasonably be expected to have a material material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement, the Advisory Management Agreement and the Accounting Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(i) This Agreement, the Management Agreement and the Accounting Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) 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 Management Agreement and the Accounting Agreement, except where such as have been made or obtained under the revocationAct, termination or impairment the 1940 Act and the rules and regulations of the Adviser's rights NASD and such as may be required under such permits should not reasonably be expected to have a material adverse effect on the ability blue sky laws of any jurisdiction in connection with the purchase and distribution of the Adviser to perform its obligations under Preferred Shares by the Advisory AgreementUnderwriter in the manner contemplated herein and in the Preliminary Prospectus and Prospectus.
(k) Neither the execution, delivery or performance of this Agreement, the Management Agreement and the Accounting Agreement, nor the consummation by the Fund or the Adviser of the transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of formation, limited liability company agreement or By-Laws of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Preliminary Prospectus (and in any amendment or supplement thereto)Prospectus, the Adviser has not taken, taken nor will it take, directly or indirectly, any action designed to or which might should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale security of the Shares, Fund in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(m) In the event that the Fund or the Adviser who makes available any promotional materials intended for use only by qualified 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 not underwriters reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Underwriter or dealers participating counsel for the Underwriter in connection with the offering of the SharesPreferred Shares shall be deemed a representation and warranty by the Adviser, as to matters covered thereby, to the Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Calamos Global Total Return Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Initial Purchaser as follows:
(a) The Adviser is a corporation limited liability company duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate 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 Disclosure Package and the Prospectus (and any amendment or supplement to either of them)Final Offering Memorandum, and is duly registered and qualified to conduct its do business as a foreign limited liability company and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not in the aggregate, have a material adverse effect on (i) the ability performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) the condition (financial or otherwise), earnings, or business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business (clauses (i) and (ii) together or individually with respect to the Adviser, an “Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect”).
(b) 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 Advisory Agreement for as investment adviser to the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Disclosure Package and the Final Offering Memorandum. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, The Adviser has full limited liability company power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement.
(d) Neither ; the execution, execution and delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject Agreement to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery ofthe Adviser, and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Agreement, have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement to the Adviser have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery hereof by the other parties theretoyou, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principles of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources and appropriately skilled personnel available to it necessary for the performance of its services and obligations as contemplated described in the Prospectus (or any amendment or supplement thereto) Disclosure Package and the Final Offering Memorandum and as contemplated under this Agreement and the Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser in the Registration Statement Disclosure Package and the Prospectus (and any amendment or supplement to either of them) Final Offering Memorandum complied and comply in all material respects with the provisions of the 1933 Act, Advisers Act and 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading. The Adviser is not aware that any executive, key employee or significant group of employees of the Adviser plans to terminate employment with the Company or the Adviser.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should threatened that would reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (Disclosure Package and any amendment or supplement thereto)the Final Offering Memorandum, except to the extent that where the failure to so obtain such licenses, permits or authorizations would not have should not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Material Adverse Effect. The Adviser has fulfilled and performed all its material obligations with respect to such licenses, permits or authorizations and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permitlicenses, except where permits or authorizations.
(h) Neither the revocationexecution, termination delivery or impairment performance of this Agreement by the Adviser or of the Advisory Agreement nor the consummation by the Adviser of the transactions herein contemplated or by the Adviser of the transactions therein contemplated: (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of formation or limited liability company operating agreement of the Adviser's rights under ; (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound, except for such permits should conflicts that would not reasonably be expected result in an Adviser Material Adverse Effect or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to have a the Adviser or any of its properties or, other than pursuant to the terms of Section 5(h) hereof, will result in the creation or imposition of any material adverse effect on the ability lien, charge or encumbrance upon any property or assets of the Adviser pursuant to perform its obligations the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject, except to the extent for such violations, liens, charges or encumbrances that would not result in an Adviser Material Adverse Effect, it being understood and agreed that for purposes of this representation and warranty, the transactions contemplated under the Advisory AgreementAgreement do not include any prospective investment transactions generally authorized therein.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(j) The Adviser who are is not underwriters aware that (i) any of the Adviser’s executives, key employees or dealers participating significant group of employees plans to terminate employment with the Adviser or (ii) any such executive or key employee is subject to any noncompete, 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 constitute an Adviser Material Adverse Effect. Any certificate signed by any officer of the Adviser and delivered to the Initial Purchaser or its counsel in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to the Initial Purchaser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (Business Development Corp of America)
Representations and Warranties of the Adviser. The Adviser NAM represents and warrants to to, and agrees with, each Underwriter thatas follows:
(a) The Adviser NAM has been duly formed and is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability condition (financial or otherwise), business, earnings or properties of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) The Adviser NAM is duly registered with the Commission as an investment adviser under the Advisers Act and NAM is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for and the Trust Structuring Fee Agreement as contemplated by the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on and the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending orNAM has full power and authority to enter into this Agreement, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Management Agreement and the Advisory Structuring Fee Agreement.
(d) Neither ; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser NAM of its obligations under, this Agreement, the Management Agreement and the Advisory Structuring Fee Agreement have been duly and validly authorized by NAM; and this Agreement, the AdviserManagement Agreement, and this Agreement and the Advisory Structuring Fee Agreement have been duly executed and delivered by the Adviser andNAM, assuming due authorization, execution and delivery by the other parties thereto, each such agreement constitutes the valid and legally binding agreement of the AdviserNAM, enforceable against the Adviser NAM in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's NAM’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto) and the Prospectus and under this Agreement, the Management Agreement and the Advisory Structuring Fee Agreement, as applicable.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, 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 the Adviser or its property is pending or, to the best knowledge of the Adviser, threatened that (i) is required to be described in the Registration Statement, each Preliminary Prospectus and 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 to fulfill its obligations hereunder or under the Management Agreement and the Structuring Fee Agreement, as applicable or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the 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 each Preliminary Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) The Advisory Adviser possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(i) This Agreement, the Management Agreement complies and the Structuring Fee Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ij) Except 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 Management Agreement and the Structuring Fee Agreement, except such as disclosed have been made or obtained under the Act, the Exchange Act, the Advisers Act, the 1940 Act, the rules and regulations of FINRA 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 the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus.
(k) Neither the execution, delivery or performance of this Agreement or the Management Agreement and the Structuring Fee 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 material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to, (i) the Organizational Documents of the Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser is a party or bound or to which its property is subject, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to the Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or any of its properties.
(l) Except as stated in this Agreement and as described in the Registration Statement, each Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, and except with respect to transactions under the Dividend Reinvestment Plan, the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in violation of federal securities laws, in stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(m) In the event that the Fund or the Adviser who 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 or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are not underwriters 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 dealers participating proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the 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 a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Municipal Value Fund 2)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatof the Agents as of the date hereof and as of each Applicable Time and agrees with each of the Agents as follows:
(a) The Adviser has been duly organized, is a corporation duly incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate and has the requisite power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or to qualify does be in good standing would not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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 Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Advisory Investment Management Agreement for as an investment adviser to the Trust Company, as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances, the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Adviser.
(d) The Investment Management Agreement has been duly authorized, executed and delivered by the Adviser and is a valid and binding obligation of the Adviser and enforceable against the Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Company or any subsidiary of the Company except in accordance with the applicable provisions of the Investment Company Act and the Advisers Act. The Adviser is not aware that any executive, key employee or significant group of employees of the Adviser plans to terminate employment with the Adviser.
(f) The Adviser 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, as applicable.
(g) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of formation or limited liability company agreement of the Adviser or any agreement or other instrument binding upon the Adviser that is material to the Adviser, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Adviser of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Placement Shares.
(h) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser (an “Adviser Material Adverse Effect” and together with a Company Material Adverse Effect, a “Material Adverse Effect”).
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the Adviser, Adviser is a party or to which any of the properties of the Adviser 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 or on the power or ability of the Adviser 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 (or any amendment or supplement to either of them) but and are not so described.
(j) Subsequent to the respective dates as of which information is given in each of the Registration Statement and the Prospectus, (i) the Adviser has not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Adviser has not purchased any of its outstanding limited liability company interests, nor declared, paid or otherwise made any dividend or distribution of any kind on its limited liability company interests other than ordinary and customary dividends; and (iii) there has not been any material change in the limited liability company interests, short-term debt or long-term debt of the Adviser, except as described as required in each of the Registration Statement and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or that should reasonably be expected foreign regulatory authorities necessary to conduct its business, and the Adviser has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the ability of Adviser, except as described in the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(gl) The description of the Adviser contained in the Registration Statement and the Prospectus (does not, and prior to the time of purchase will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (therein, in the case of the Prospectus, in light of the circumstances under in which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(jm) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Placement Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(n) The Adviser who maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with its management’s general or specific authorization and with the investment objectives, policies and restrictions of the Company and the applicable requirements of the Investment Company Act and the Code; (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP, to calculate net asset value, and to maintain asset accountability, and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with its management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(o) The Adviser is not underwriters aware that any executive, key employee or dealers significant group of employees of the Adviser 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 violation would not have a material adverse effect on the Adviser.
(p) Neither the Adviser nor any of the Adviser’s subsidiaries or affiliates, nor any director, officer, or employee of the Adviser, nor, to the Adviser’s knowledge, any agent or representative of the Adviser or of any of the Adviser’s subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or 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) to influence official action or secure an improper advantage; and the Adviser and its respective subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(i) Neither the Adviser nor any of the Adviser’s subsidiaries (collectively, the “Adviser Entity”) nor any director, officer, employee, agent, affiliate or representative of the Adviser Entity, is a Person that is, or is owned or controlled by a Person that is:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of Zaporizhzhia and Kherson, Cuba, Iran, North Korea, Russia, Sudan and Syria).
(ii) The Adviser Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering of the Sharesoffering, whether as underwriter, advisor, investor or otherwise).
(liii) Each Prepricing Prospectus complied when filed The Adviser Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the Commission in all material respects with the provisions time of the 1933 Actdealing or transaction is or was the subject of Sanctions.
(r) The operations of the Adviser and its subsidiaries have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including the 1940 Act 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 Rules and Regulations. The Commission has not issued any order preventing or suspending Adviser with respect to Anti-Money Laundering Laws is pending or, to the use best knowledge of any Prepricing Prospectus or the ProspectusAdviser, threatened.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not reasonably be expected to have a material adverse effect Material Adverse Effect on the ability of Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Investment Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should would reasonably be expected to have a material adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should would reasonably be expected to result in any Material Adverse Effect on the Adviser or that would be reasonably expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or the Advisory Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement, the Sub-Advisory Agreement or the Subscription Agreement for Common Shares of the Fund dated March 11, 2005 (the "Subscription Agreement," this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement, the Sub-Advisory Agreement by and the AdviserSubscription Agreement being referred to herein as the "Adviser Agreements"), nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing which has not yet been made or obtained with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser (except compliance with securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into each of the Adviser Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability .
(j) None of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might would reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax-Advantaged Floating Rate Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to and agrees with each Underwriter of the Underwriters that:
(a) The Adviser has been duly formed, is a corporation duly incorporated and validly existing as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits formation, with full corporate has 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 and the Time of Sale Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or to qualify does be in good standing would not have a material adverse effect on the ability condition (financial or otherwise), business prospects, earnings, business properties, management or personnel of the Adviser, whether or not arising from transactions in the ordinary course of business of such Adviser to perform its obligations under this Agreement and the Advisory Agreement(an “Adviser Material Adverse Effect”). The Adviser has no subsidiaries.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Investment Advisory Agreement for as an investment adviser to the Trust Fund as contemplated by the Time of Sale Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on from performing the registration of services required under the Administrative Services and Reimbursement Agreement between the Adviser with and the Commission.
Fund, dated [—], 2013 (c) There are the “Reimbursement Agreement”), and no legal order of suspension or governmental revocation of such registration has been issued or proceedings pending therefor initiated or, to the knowledge of the Adviser, threatened against by the Commission.
(c) Each of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the Syndication Fee Agreement between Xxxxxx Xxxxxxx & Co. LLC and the Adviser, that are required to be described in dated [—], 2013, the Registration Statement or Structuring Fee Agreement between [—] and the Prospectus Adviser, dated [—], 2013, the Structuring Fee Agreement between [—] and the Adviser, dated [—], 2013 and the Structuring Fee Agreement between [—] and the Adviser, dated [—], 2013 (or any amendment or supplement to either of themand together with the other fee agreements, the “Fee Agreements”) but are not described as required or that should reasonably be expected to have a material adverse effect on (this Agreement, the ability of Investment Advisory Agreement, the Adviser to perform its obligations under this Reimbursement Agreement and the Advisory Agreement.
(dFee Agreements are referred to herein, collectively, as the “Adviser Agreements”) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have has been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser andand complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Other than this Agreement, each of the Adviser Agreements, assuming the due authorization, execution and delivery by the other parties thereto, each constitutes the is a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other similar laws relating to or affecting creditors' ’ rights generally and by general equitable principles of general applicability; provided that the Adviser makes no representation or warranty as to the effect on the representations and warranties expressed herein of (i) the compliance or noncompliance of any other party (other than the Fund and the Adviser) to any of the forgoing agreements with any state, federal or other laws or regulations applicable to it or them or (ii) the legal or regulatory status or the nature of the business of such party.
(d) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under the Adviser Agreements will not contravene (i) the certificate of formation or limited liability company agreement of the Adviser, (ii) any agreement or other instrument binding upon the Adviser, (iii) any provision of applicable law or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether enforcement foreign or domestic, except in the case of (ii), (iii) and (iv) above where such contravention would not have an Adviser Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is considered required for the performance by the Adviser of its obligations under the Adviser Agreements, except such as have been obtained and as may be required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement, or such as to which the failure to obtain would neither have (i) an Adviser Material Adverse Effect or (ii) an adverse effect on the consummation of the transactions contemplated by this Agreement or on any Underwriter.
(e) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened to which the Adviser is a proceeding party or to which any of the properties of the Adviser is subject (i) other than proceedings, if required to be disclosed therein, accurately so described in equity all material respects in the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or at lawan adverse effect on the power or ability of the Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits 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 Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not have a Fund Material Adverse Effect or an Adviser Material Adviser Effect.
(g) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Time of Sale Prospectus (or any amendment or supplement thereto) and under this Agreement and by the Advisory AgreementAdviser Agreements.
(gh) The Investment Advisory Agreement is in full force and effect and the Adviser is not 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 under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(i) The description of the Adviser in (i) the Registration Statement does not, and on the Prospectus (and Closing Date will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 any material fact required to be stated therein or necessary to make the statements therein not misleading and (in ii) the case Time of Sale Prospectus and Prospectus does not, and on the ProspectusClosing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary, in light of the circumstances under which they were made) , not misleading.
(hj) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business prospects, earnings, business properties, management or personnel of the Adviser from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Adviser that are material to the Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) Neither the Adviser nor its affiliates, nor any director, officer, or employee, nor, to the Adviser’s knowledge, any agent or representative of the Adviser or of any of its affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or 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) to influence official action or secure an improper advantage; and the Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The Advisory Agreement complies in all material respects with all applicable provisions operations of the 1940 ActAdviser are and have been conducted at all times in material compliance with 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 1940 Act Rules and RegulationsAdviser or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Advisers Act and knowledge of the Advisers Act Rules and RegulationsAdviser, threatened.
(i) Except as disclosed in Neither the Registration Statement and the Prospectus (Adviser nor its affiliates, nor any director, officer, or any amendment or supplement to either of them)employee, subsequent nor, to the respective dates as of which such information is given in the Registration Statement and the Prospectus (Adviser’s knowledge, any agent or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability representative of the Adviser to perform or of any of its obligations under this Agreement affiliates, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is:
(A) the subject of any Sanctions, nor
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and the Advisory AgreementSyria).
(jii) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it takenot, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person:
(A) to fund or which might reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in stabilization or manipulation a violation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of the Adviser who are not underwriters or dealers Person (including any Adviser Person participating in the offering of the Sharesoffering, whether as underwriter, advisor, investor or otherwise).
(liii) Each Prepricing Prospectus complied when filed The Adviser has not knowingly in the past five years engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Commission in all material respects with the provisions time of the 1933 Act, dealing or transaction is or was the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use subject of any Prepricing Prospectus or the ProspectusSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Apollo Tactical Income Fund Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement Statement, the Pricing Prospectus and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of Adviser, Sub-Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under any of the Advisory Agreement Agreements for the Trust Fund as contemplated by the Registration Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect effect on the registration of the Adviser with the Commission.
(c) The Adviser is not in violation of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act or the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser or any decree of the Commission, FINRA, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser. The Adviser maintains and will maintain processes, systems and controls sufficient to provide reasonable assurances that the Adviser complies and will continue to comply with the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser and any decree of the Commission, FINRA, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser.
(d) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Change in the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAgreements.
(de) Neither the execution, delivery or performance of this Agreement, the Subscription Agreement, [the Agreement or between the Adviser and the Sub-Adviser dated [_________], 2007, setting forth the basic economic terms and material conditions and provisions governing their relationship (the "Advisory Terms Agreement")]
(f) The Adviser has full power and authority to enter into this Agreement, the Subscription Agreement and each of the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing withAgreements, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Subscription Agreement and each of the Advisory Agreement Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement, the Subscription Agreement and each of the Advisory Agreement Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(fg) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement, the Subscription Agreement and or any of the Advisory AgreementAgreements.
(gh) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the applicable provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Pricing Prospectus and the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except Since the date as disclosed of which information is given in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates except as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)otherwise stated therein, there has not occurred any event which that should reasonably be expected to have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or each of the Advisory AgreementAgreements.
(j) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Pricing Prospectus and the Prospectus (and any amendment or supplement thereto), except to the extent that the any failure to so have such permits should not reasonably be expected to have a material material, adverse effect on the ability of the Adviser to perform its obligations under each of the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementAgreements.
(k) This Agreement and each of the Advisory Agreements complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(l) Except as stated in this Agreement and in Agreement, the Registration Statement, the Pricing Prospectus or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor will it take, directly or indirectly, taken any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust Active Dividend Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each the Underwriter that:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(b) 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 Advisory Investment Management Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There To the best knowledge of the Adviser, after reasonable inquiry, there does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There To the best knowledge of the Adviser, after reasonable inquiry, there are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(d) Neither To the best knowledge of the Adviser after reasonable inquiry, neither the execution, delivery or performance of this Agreement or the Advisory Investment Management Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default, would not have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) where such conflict, breach, default or (B) as should violation would not reasonably be expected to have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the financial condition, business, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Investment Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.valid
Appears in 1 contract
Samples: Underwriting Agreement (Kemper Municipal Income Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser's knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas of the date of this Agreement, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement Statement, the Pricing Prospectus and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material material, adverse effect affect on the ability condition (financial or other), general affairs, business, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and or the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Effect on the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation partnership agreement or bylaws, bylaws or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Aii) for such conflict, breach, default, violation or (B) as should lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Pricing Prospectus and the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement ordinary course of its business as described in the Pricing Prospectus and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Pricing Prospectus and the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment .
(j) None of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability this Agreement nor any of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement, the Pricing Prospectus or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust/Gallatin Specialty Finance & Financial Opportunities Fund)
Representations and Warranties of the Adviser. The Adviser hereby represents and warrants to each Underwriter thatas of the date hereof:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this 2.1 This Agreement and the Advisory Agreement.
(b) 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have has been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties theretoCompany and the Dealer Manager, each constitutes the is a legal, valid and legally binding agreement of the Adviser, Adviser enforceable against the Adviser 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 Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other moratorium or similar laws relating to or affecting creditors' ’ rights generally generally, and by general equitable principles whether enforcement is considered principles, and except to the extent that the enforceability of the indemnity provisions contained in a proceeding in equity or at lawSection 12 of this Agreement may be limited under applicable securities laws.
(f) 2.2 The Adviser has is a limited liability company duly organized and validly existing under the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description laws of the Adviser State of Delaware, and is in good standing with the State of Delaware Secretary of State, with full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied enter into this Agreement and comply in all material respects with to perform the provisions transactions contemplated hereby.
2.3 Except for the continued registration of the 1933 Act, the 1940 Act, Adviser under the Advisers Act, no consent, approval, authorization or other order of any governmental authority is required in connection with the Rules execution or delivery by the Adviser of this Agreement.
2.4 There are no actions, suits or proceedings pending, or to the knowledge of the Adviser, threatened against the Adviser at law or in equity or before or by any federal or State commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would have any material adverse change in the condition, financial or otherwise, results of operations or cash flows of the Adviser that individually or in the aggregate would materially and Regulations adversely affect the Adviser such that the Adviser would be prevented from carrying out its business, performing its obligations under this Agreement or affecting the validity or enforceability of this Agreement (an “Adviser Material Adverse Effect”).
2.5 The Adviser is not in violation of its certificate of formation or its limited liability company agreement and the Advisers Act Rules execution and Regulations delivery of this Agreement, the consummation of the transactions herein contemplated and did not and compliance with the terms of this Agreement by the Adviser will not contain an untrue statement conflict with, violate the terms of or constitute a default under (a) its certificate of formation or limited liability company agreement, (b) any indenture, mortgage, deed of trust, lease or other material fact agreement or omit instrument to state which the Adviser is a material fact required party or by which it may be bound, (c) any law, order, rule or regulation applicable to be stated therein the Adviser or necessary to make (d) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the statements therein (Adviser or its assets, properties or operations, except, in the case of clauses (b), (c) and (d), for such violations or defaults that, individually or in the Prospectusaggregate, would not result in light of the circumstances under which they were made) not misleadingan Adviser Material Adverse Effect.
(h) 2.6 The Advisory Agreement complies in all material respects with all applicable provisions of agreements to which the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed Adviser is a party which are described in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement are valid and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission enforceable in all material respects with by the provisions Adviser except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and, to the knowledge of the 1933 ActAdviser, the 1940 Act and the Rules and Regulations. The Commission has no party thereto is in breach or default under any of such agreements, except where such breach or default would not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectushave an Adviser Material Adverse Effect.
Appears in 1 contract
Samples: Follow on Dealer Manager Agreement (CION Investment Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material material, adverse effect affect on the ability condition (financial or other), general affairs, business, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and or the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any material, adverse change in the condition (financial or other), properties, net assets or results of operations of the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and Agreement, the Advisory Agreement, the Sub-Advisory Agreement or the Administration Agreements.
(d) Neither the execution, delivery or performance of this Agreement, the Advisory Agreement, the Sub-Advisory Agreement or the Advisory Agreement Administration Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and Agreement, the Advisory Agreement, the Sub-Advisory Agreement or the Administration Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into this Agreement, the Advisory Agreement, the Sub-Advisory Agreement and the Administration Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Advisory Agreement, the Sub-Advisory Agreement and the Advisory Agreement Administration Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement, the Advisory Agreement, the Sub-Advisory Agreement and the Advisory Agreement Administration Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and Agreement, the Advisory Agreement, the Sub-Advisory Agreement or the Administration Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(j) This Agreement, except where the revocation, termination or impairment Advisory Agreement and the Sub-Advisory Agreement each do not violate any applicable provisions of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on 1940 Act, the ability of 1940 Act Rules and Regulations, the Adviser to perform its obligations under Advisers Act and the Advisory AgreementAdvisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Hyperion Strategic Mortgage Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareCalifornia, with full corporate partnership power and authority to own, lease and operate its properties or assets and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign limited partnership and is in good standing in under the laws of each jurisdiction or place where which requires such qualification. KAEFTX, L.P., the nature subsidiary of the Adviser, is a limited partnership duly organized and validly existing in good standing under the laws of the State of Texas, with full partnership power and authority to own, lease and operate its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementassets.
(b) 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 Advisory Agreement for the Trust Company, the Additional Compensation Agreement or the Structuring Fee Agreement as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending orThe Adviser has full partnership power and authority to enter into this Agreement, to the knowledge of Advisory Agreement, the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly and validly authorized by the Adviser, ; and this Agreement, the Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principals of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 ActActs, the Advisers Act, the Rules and Regulations 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this Agreement and the Advisory Agreement, the Additional Compensation Agreement or the Structuring Fee Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Adviser 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 Acts or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(h) This Agreement, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ki) Except as stated No consent, approval, authorization, filing with or order of any court or governmental agency or body or supervisory authority is required in connection with the transactions contemplated herein or in the Advisory Agreement, the Additional Compensation Agreement or the Structuring Fee Agreement other than (a) those that have been made or obtained under the Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus Prospectus, (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc., and in any amendment (d) such other approvals as have been obtained.
(j) Neither the execution, delivery or supplement thereto)performance of this Agreement or the Advisory Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement, nor the consummation by the Company or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of limited partnership or agreement of limited partnership of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(k) The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed In the event that the Company or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the Commission in all material respects with the provisions offering of the 1933 ActSecurities shall be deemed a representation and warranty by the Adviser, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusas to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Kayne Anderson Energy Total Return Fund, Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas 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:
(ai) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company and in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the General Disclosure Package and the Prospectus (and any amendment or supplement to either of them), execute and deliver this Agreement; the Adviser has full power and authority to execute and deliver the Investment Advisory Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not in the aggregate, have a material adverse effect on the ability business, financial condition, capitalization, prospects or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Advisory Agreement and the Advisory Agreement.(an “Adviser Material Adverse Effect”);
(bii) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)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 should reasonably be expected could lead to have a material adverse any proceeding which could adversely affect on the registration of the Adviser with the Commission.;
(ciii) There there are no legal or governmental actions, suits, claims, proceedings or, to the Adviser’s knowledge, investigations pending or, to the knowledge of the Adviser, threatened against to which the Adviser, that or to the knowledge of the Adviser, any of its respective officers, partners, or members are required or would be a party, or of which 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 described the Adviser, (A) have, individually or in the Registration Statement aggregate, an Adviser Material Adverse Effect, or (B) prevent the Prospectus consummation of the transactions contemplated hereby;
(iv) the Adviser is not (A) in violation of its certificate of incorporation or limited liability company operating agreement, or (B) in breach of (nor has any amendment event occurred which with notice, lapse of time or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability 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 is a party, or (C) in contravention of any law, regulation or rule or any decree, judgment or order applicable to perform its obligations under this Agreement the Adviser, except, with respect to clause (B) and (C), to the Advisory Agreement.
(d) Neither extent that any such breach, violation or contravention would not have an Adviser Material Adverse Effect; and the execution, delivery or and performance of this Agreement or Agreement, the Investment Advisory Agreement by the Adviser, nor and the consummation by the Adviser of the transactions contemplated hereby or and thereby (A) requires and in the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing withRegistration Statement, the Commission, General Disclosure Package and the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over Prospectus (including the Adviser or conflicts or issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) will conflict with or constitutes or will constitute a breach of or a default under, not (i) violate the certificate of incorporation or bylaws, or other organizational documents, limited liability company operating agreement of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material result in any breach of (nor has any event occurred which with notice, lapse of time or a default under, both would reasonably be expected to result in any material agreement, breach or violation) any indenture, lease 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 is a party or by which the Adviser or (iii) contravene any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser, 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; and the execution, delivery and performance of this Agreement and the Investment Advisory 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) the Adviser’s limited liability company operating agreement, (ii) other organizational documents of the Adviser, (iii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it the Adviser is a party or by which it may be bound (iv) any law, regulation, rule or any decree, judgment or order applicable to which the Adviser, except, with respect to clauses (iii) and (iv), to the extent that any of the property such breach, violation or assets of the contravention would not have an Adviser is subject, except in any case under clause Material Adverse Effect;
(Av) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution Adviser; this Agreement and delivery by the other parties thereto, each constitutes the Investment Advisory Agreement constitute valid and legally binding agreement agreements of the Adviser, enforceable against provided, however, that the Adviser in accordance makes no representations or warranties with its terms, except as respect to the validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and and/or contribution hereunder or enforceability of any obligations that may be limited by federal or state securities laws, and subject to the qualification that Enforceability Exceptions;
(vi) the enforceability descriptions of the Trust's obligations hereunder Adviser contained in the Registration Statement, the General Disclosure Package and thereunder may be limited by bankruptcythe Prospectus are true, fraudulent conveyance, insolvency, reorganization, moratorium, accurate and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered complete in a proceeding in equity or at law.all material respects;
(fvii) The the Adviser has the 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 (or any amendment or supplement thereto) and under this Agreement and with respect to the Investment Advisory Agreement.;
(gviii) The description subsequent to the date of the Adviser most recent financial statements contained in the Registration Statement Statement, General Disclosure Package and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred been any event which should reasonably be expected to have a material adverse effect on change, or any development involving a prospective material adverse change, in the ability business, financial condition, capitalization, prospects or regulatory status of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Adviser;
(jix) The the Adviser has such permitsall Consents and has made all necessary filings required under any federal, licensesstate, franchises local or foreign law, regulation or rule and authorizations of governmental or regulatory authorities ("permits") as are has obtained all necessary to own its properties and Consents from other persons, in order to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permitbusiness, except where the revocationfailure to obtain such Consents or make such filings would not have an Adviser Material Adverse Effect; the Adviser is not in violation of, termination or impairment in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the aggregate, have an Adviser Material Adverse Effect;
(x) the Adviser has not, and to the knowledge of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability , none of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment respective partners, officers, affiliates or supplement thereto), the Adviser controlling persons has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and Securities;
(xi) the Adviser is not aware that (A) any executive, key employee or significant group of employees of the Company, if any, or the Adviser plans to terminate employment with the Company or the Adviser or (B) any such action taken executive, key employee or significant group of employees is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser, except where such termination or violation would not have an Adviser Material Adverse Effect;
(xii) the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it under the Investment Advisory Agreement, as applicable, is 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;
(xiii) the operations of the Adviser who are not underwriters or dealers participating is and has been conducted at all times in the offering compliance with all applicable anti-money laundering laws, rules, and regulations, including financial recordkeeping and reporting requirements, and including those of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions Bank Secrecy Act, as amended by Title III of the 1933 USA PATRIOT Act, the 1940 Money Laundering Control Act of 1986, the Anti-Money Laundering Act of 2020, and the Rules applicable anti-money laundering statutes of jurisdictions where the Adviser and Regulationseach of its subsidiaries conduct business the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser Anti-Money Laundering Laws”), and no inquiry, action, suit or proceeding by or before any court or governmental agency, authority, body or arbitrator involving the Adviser with respect to the Adviser Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser, threatened. The Commission Adviser has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Law, Adviser Anti-Money Laundering Laws, Sanctions and with the representations and warranties contained herein;
(A) neither the Adviser nor any director, officer or employee thereof, nor to the Adviser’s knowledge, any agent or representative of the Adviser, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any person or Government Official in order to influence official action, or to any person in violation of the Anti-Corruption Laws; (B) no inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser with respect to the Anti-Corruption Laws is pending or, to the knowledge of the Adviser, threatened; (C) the Adviser has conducted and will conduct its business in compliance with the Anti-Corruption Laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (D) the Adviser, will not issued use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any order preventing or suspending the use person in violation of any Prepricing Prospectus Anti-Corruption Laws;
(xv) (A) the Adviser, nor any director, officer or employee thereof, nor to the Prospectus.Adviser’s knowledge, any affiliate, representative or agent of the Adviser is a Person that is, or is owned or controlled by one or more Persons that are:
(i) the subject of any Sanctions, or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea, Sudan and Syria);
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, would have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, that does or would have a Material Adverse Effect on the Adviser or does or would have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) (i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities (“permits”) as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, (iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does not or would not have a Material Adverse Effect on the Adviser or does not or would not have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser’s knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Blackrock Dividend Achievers Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters as of the Effective Time, as of the date hereof, as of the time of purchase and as of the time of any additional purchase that:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company, and is in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Prospectus and to execute and deliver this Agreement and the Prospectus (and any amendment or supplement to either of them), and Investment Advisory Agreement; the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not in the aggregate, have a material adverse effect on the ability business, properties, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise be reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Advisory Agreement and the Advisory Agreement.(collectively, an “Adviser Material Adverse Effect”);
(b) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Investment Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(c) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against threatened, to which the AdviserAdviser or any of their officers, that partners or members are required to or would be described a party or of which any of their 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 result in a judgment, decree or order either (A) constituting, individually or in the Registration Statement aggregate, an Adviser Material Adverse Effect, or (B) preventing the Prospectus consummation of the transactions contemplated hereby;
(d) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have result in any breach or violation of, constitute a material adverse effect default under or give the holder of any indebtedness (or person acting on such holder’s behalf), the ability right to require the repurchase, redemption or repayment of all or part of such indebtedness under) (i) the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery limited liability company operating agreement or performance other organizational documents of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser (ii) any indenture, mortgage, deed of the transactions contemplated hereby trust, bank loan or thereby (A) requires the Adviser to obtain any consent, approval, authorization credit agreement or other order ofevidence of indebtedness, or registration or filing withany license, the Commissionlease, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency contract or other governmental body, agency agreement or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) under any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute an Adviser Material Adverse Effect; the execution, delivery and performance of this Agreement and the Investment Advisory 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 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 limited liability company operating agreement or other organizational documents of the Adviser, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or other applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on the ability of the constitute an Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.Material Adverse Effect;
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have has been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser andAdviser; the Investment Advisory Agreement has been duly authorized, assuming due authorization, execution executed and delivery delivered by the other parties thereto, each Adviser; the Investment Advisory Agreement constitutes the a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder the enforceability thereof may be limited by federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by (i) bankruptcy, fraudulent conveyanceinsolvency (including, insolvencywithout limitation, reorganization, moratorium, and other all laws relating to fraudulent transfers) or similar laws affecting creditors' ’ rights generally and by generally, (ii) general equitable principles whether enforcement is considered in a proceeding in equity and (iii) limitation on rights to indemnification and contribution imposed by state or at federal securities laws or the policies underlying such law.;
(f) The the description of the Adviser contained in the Registration Statement, the Disclosure Package and the Prospectus is true, accurate and complete in all material respects;
(g) the Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.as applicable;
(h) The Advisory Agreement complies in the Adviser owns or leases or has access to all material respects with all applicable provisions properties and assets as are necessary to the conduct of the 1940 Actits operations as presently conducted, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.except as would not have an Adviser Material Adverse Effect;
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of to which such information is given in the Registration Statement Statement, Disclosure Package and the Prospectus (exclusive of any amendments or any amendment or supplement supplements thereto subsequent to either the date of themthis Agreement), there has not occurred been any event which should reasonably be expected to have a material adverse effect on change, or any development involving a prospective material adverse change, in the ability business, properties, financial condition, capitalization or regulatory status of the Adviser, or that would otherwise prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement;
(j) the Adviser has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its business, except where the failure to obtain such licenses, authorizations, consents and approvals or to make such filings would not constitute an Adviser Material Adverse Effect; the Adviser is not in violation of, or in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the aggregate, constitute an Adviser Material Adverse Effect;
(k) the Adviser 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 it or which are necessary for the conduct of its businesses (collectively, “Adviser Intellectual Property”), except where the failure to own, license or have such rights would not, individually or in the aggregate, cause an Adviser Material Adverse Effect; the Adviser has not received notice nor is the Adviser 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 Intellectual Property invalid or inadequate to protect the interest of the Adviser to perform its obligations 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 Material Adverse Effect;
(l) the Adviser is not, and upon the sale of the Shares contemplated under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations application of governmental or regulatory authorities ("permits") the net proceeds therefrom as are necessary to own its properties and to conduct its business in the manner described in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will not be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act;
(m) the Adviser 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 amendment fidelity or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of surety bonds insuring the Adviser to perform or its obligations under the Advisory Agreementbusinesses, assets, employees, officers and directors are in full force and effect; the Adviser has fulfilled is in compliance with the terms of such policies and performed instruments in all its material obligations with respect to such permits and respects; there are no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of claims by the Adviser under any such permit, except where the revocation, termination policy or impairment instrument as to which any insurance company is denying liability or defending under a reservation of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), clause; the Adviser has not been refused any insurance coverage sought or applied for; and the Adviser does not have any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have an Adviser Material Adverse Effect;
(n) neither the Adviser nor, to its knowledge, any of its partners, officers, affiliates or controlling persons has taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares;
(o) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, or the Adviser, plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute an Adviser Material Adverse Effect; and
(lp) Each Prepricing Prospectus complied when filed 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 Commission Company’s assets is permitted only in all material respects accordance with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not reasonably be expected to have a material adverse effect Material Adverse Effect on the ability of Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Investment Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should would reasonably be expected to have a material adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should would reasonably be expected to result in any Material Adverse Effect on the Adviser or that would be reasonably expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or the Advisory Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement, the Sub-Advisory Agreement or the Subscription Agreement for Common Shares of the Fund dated March 11, 2005 (the "Subscription Agreement," this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement, the Sub-Advisory Agreement, the Letter Agreement by and the AdviserSubscription Agreement being referred to herein as the "Adviser Agreements"), nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing which has not yet been made or obtained with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser (except compliance with securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into each of the Adviser Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability .
(j) None of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in Agreements violate any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the applicable provisions of the 1933 1940 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending , the use of any Prepricing Prospectus or Advisers Act and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax-Advantaged Floating Rate Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to the Agent as of the date hereof, as of each Underwriter thatApplicable Time and as of each Settlement Date, and agree with the Agent as follows:
(a) Since the respective dates as of which information is given in the Registration 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 or any of its 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”).
(b) The Adviser and each of its subsidiaries has been duly organized and is a corporation duly incorporated and validly existing corporation in good standing under the laws of the State of Delaware, with full and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either 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; and each of them), the Adviser and its subsidiaries is duly registered and qualified to conduct its 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 place where the nature leasing of its properties property or the conduct of its business requires such registration or qualificationbusiness, except where the failure to so register qualify or be in good standing would not otherwise reasonably be expected to qualify does not have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(bc) 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 for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Registration Statement and the Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should could reasonably be expected to have a material adverse lead to any proceeding, which might adversely affect on the registration of the Adviser with the Commission.
(cd) There are is no legal action, suit or proceeding or, to the knowledge of the Adviser or any of its subsidiaries, inquiry or investigation before or brought by any court or governmental proceedings pending agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened threatened, against or affecting the Adviser, that are Adviser which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser 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 is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement or and/or the Prospectus (or any amendment or supplement Prospectus, including ordinary routine litigation incidental to either of them) but are their business, would not described as required or that should reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(de) Neither the execution, delivery or performance Adviser nor any of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser its subsidiaries is in violation of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the its certificate of incorporation or bylawsin default in the performance or observance of any obligation, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material 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 is a party or by which the Adviser it or any of its properties them may be bound, or materially violates to which any of the property or will materially violate assets of the Adviser is subject (collectively, the “Adviser Agreements and Instruments”), or in violation of any material law, statute, lawrule, regulation or regulation, judgment, injunction, order or decree applicable except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect; 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 Shares and the use of the proceeds from the sale of the Shares as described in the Registration Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or any without the giving of its properties notice or will passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement Adviser Agreements except for such violations or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should defaults that would not reasonably be expected to have a material adverse effect on result in an Adviser Material Adverse Effect, nor will such action result in any violation of the ability provisions of 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 any of its assets, properties or operations except for such violations that would not reasonably be expected to perform its obligations under this result in an Adviser Material Adverse Effect.
(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. This Agreement, the Investment Advisory Agreement. The Agreement and the Administration Agreement are valid and binding obligations of the Adviser is not or the Administrator, as 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 order of proceeding therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and agency is necessary or required for the performance by the Adviser of its obligations underhereunder, this Agreement and in connection with the Advisory Agreement have been duly and validly authorized by the Adviseroffering, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement issuance or sale of the Adviser, enforceable against Shares hereunder or the Adviser 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 consummation of the Trust's obligations hereunder and thereunder may be limited transactions contemplated by bankruptcythis Agreement, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has including the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description use of the Adviser proceeds from the sale of the Shares as described in the Registration Statement and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 0000 Xxx.
(and any amendment or supplement to either of themh) complied and comply in all material respects with the provisions The description of the 1933 Act, Adviser contained in the 1940 Act, the Advisers Act, the Rules and Regulations Registration Statement and the Advisers Act Rules and Regulations and did not and will Prospectus does not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under in which they were made) , not misleading.
(hi) The Advisory Agreement complies Adviser possesses such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it (“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; the Adviser is in compliance with the terms and conditions of all material respects with such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect; all applicable provisions of the 1940 ActGovernmental Licenses are valid and in full force and effect, except when the 1940 Act Rules invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and Regulationseffect would not, singly or in the Advisers Act aggregate, result in an Adviser Material Adverse Effect; and the Advisers Act Rules and Regulations.
(i) Except as disclosed Adviser has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the Registration Statement and aggregate, if the Prospectus (subject of an unfavorable decision, ruling or any amendment or supplement to either of them)finding, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should would reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(j) The Adviser has is not 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 permitsexecutive or key employee is subject to any non-compete, licensesnondisclosure, franchises and authorizations confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of governmental the Company or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment Adviser except where such termination or supplement thereto), except to the extent that the failure to so have should violation would not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser. The Adviser hereby represents and warrants to each Underwriter the Company that:
(a) The Adviser is a corporation duly incorporated has obtained all required governmental and validly existing in good standing under the laws of the State of Delawareregulatory licenses, with full corporate power registrations and authority to own, lease and operate its properties and to conduct its business approvals required by law as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser may be necessary to perform its obligations under this Agreement and to act as contemplated by the Advisory Agreement.
(b) The Adviser is duly registered with Company Documents and the Commission Disclosure Documents, including without limitation registration as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, and will maintain and renew any required licenses, registrations, approvals and memberships during the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration term of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(db) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order ofThere is no pending, or registration to the best of its knowledge, threatened or filing withcontemplated action, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, suit or proceeding before or by any court, regulatory bodygovernmental, administrative agency or other governmental body, agency self-regulatory body or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument arbitration panel to which the Adviser is a party or by which the Adviser or any of its properties may be bound, principals or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it affiliates is a party or by which it may be bound party, or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not which reasonably might be expected to have a (i) result in any material adverse effect on change in the ability Adviser’s condition (financial or otherwise), business or prospects, (ii) affect adversely in any material respect any of the Adviser Adviser’s assets, (iii) materially impair the Adviser’s ability to perform discharge its obligations under this Agreement Agreement, or (iv) result in a matter which would require an amendment to the Adviser’s Form ADV, Part 2; and the Advisory Agreement. The Adviser is has not subject to received any order notice of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance an investigation by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by Commission or any state regarding U.S. federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to regulations or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawrules.
(fc) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated All references in the Prospectus (or any amendment or supplement thereto) Disclosure Documents concerning the Adviser and under this Agreement its affiliates and the Advisory Agreement.
(g) The description controlling persons, affiliates, stockholders, directors, officers and employees of any of the foregoing provided to the Company or MassMutual by the Adviser or approved by the Adviser for use in the Registration Statement and Disclosure Documents, as well as all performance information provided to the Prospectus (and any amendment Company or supplement to either of them) complied and comply MassMutual by the Adviser or approved by the Adviser for use by the Company or the Fund, are accurate in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will do not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) such information not misleading.
(hd) The Advisory Agreement complies in all material respects with all applicable provisions Subject to adequate assurances of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto)confidentiality, the Adviser has not takensupplied to, nor will it takeor made available for review by, directly or indirectlythe Company and the Fund (and if requested by them to their designated auditors) and MassMutual all documents, any action designed statements, agreements and workpapers reasonably requested by them relating to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued accounts covered by the Trust to facilitate Adviser’s performance results and which are in the sale or resale of the Shares, and the Adviser is not aware of any such action taken Adviser’s possession or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulationswhich it has access. The Commission has not issued any order preventing or suspending foregoing representations and warranties shall be continuing during the use term of any Prepricing Prospectus or the Prospectusthis Agreement.
Appears in 1 contract
Samples: Investment Advisory Agreement (Massmutual Select Funds)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company, in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement and to execute and deliver this Agreement; the Prospectus (Adviser has full power and any amendment or supplement authority to either of them), execute and deliver the Investment Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, constitute a material adverse effect on change in the ability business, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Management Agreement and the Advisory Agreement.(collectively, a “Material Adverse Change”);
(b) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Advisory Investment Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(c) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser or any of its officers or members are or would be a party or of which any of their properties are or would be subject at law or in equity, that are required to be described 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 Statement aggregate, a Material Adverse Change, or (B) preventing the Prospectus consummation of the transactions contemplated hereby;
(d) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery result in any breach or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order violation of, constitute a default under or registration give the holder of any indebtedness (or filing withperson acting on such holder’s behalf), the Commissionright to require the repurchase, the NASDredemption or repayment of all or part of such indebtedness under) (i) its charter, any state securities commissionbylaws, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsformation, limited liability company operating agreement, or other organizational documents, of the Adviser as applicable, or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute a Material Adverse Change, and the execution, delivery and performance of this Agreement, and the Investment Management 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 of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under Material Adverse Change;
(e) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser Adviser, and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject to the qualification that (i) the enforceability of the Trust's obligations hereunder and thereunder thereof may be limited by bankruptcy, fraudulent conveyancereorganization, insolvency, reorganizationmoratorium (including, moratoriumwithout limitation, and other all laws relating to fraudulent transfers) or similar laws now or thereafter in effect affecting creditors' ’ rights generally and (ii) rights to indemnification and contribution may be limited by general equitable principles of general applicability whether enforcement is considered in a proceeding in of equity or at law.in law or by state or federal securities laws or the policies underlying such laws;
(f) The the description of the Adviser contained in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) the Adviser 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 (or any amendment or supplement thereto) and the Registration Statement and under this Agreement and the Advisory Investment Management Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.;
(h) The Advisory Agreement complies in all material respects with all applicable provisions subsequent to the date of the 1940 ActRegistration Statement, the 1940 Act Rules and Regulations, the Advisers Act Pre-Pricing Prospectus and the Advisers Act Rules and Regulations.Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization or regulatory status of the Adviser, or that would otherwise prevent the Adviser from carrying out its obligations under the Investment Management Agreement;
(i) Except as disclosed the Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in order to conduct its business, except where the failure to obtain such Consents would not constitute a Material Adverse Change; the Adviser is not in violation of, or in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)aggregate, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have constitute a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Material Adverse Change;
(j) The the Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment of its partners, officers, affiliates or supplement thereto), except to the extent that the failure to so controlling persons have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and Securities;
(k) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, or the Adviser plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute a Material Adverse Change; and
(l) Each Prepricing Prospectus complied when filed the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Commission Company’s assets is permitted only in all material respects accordance with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Kelso Capital CORP)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas 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:
(ai) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware corporation and in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the General Disclosure Package and the Prospectus (and any amendment or supplement to either of them), execute and deliver this Agreement; the Adviser had full power and authority to execute and deliver the Investment Advisory Agreement ; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register or qualified and in good standing would not, reasonably be expected to qualify does not have a material adverse effect on the ability business, financial condition, capitalization, or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Advisory Agreement and the Advisory Agreement.(an “Adviser Material Adverse Effect”);
(bii) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)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 should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(ciii) There there are no legal or governmental actions, suits, claims, proceedings or, to the Adviser’s knowledge, investigations pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser may be reasonably expected to become subject at law or in equity, that are required 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 described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should Adviser reasonably be expected to have a material adverse effect on the ability of an Adviser Material Adverse Effect;
(iv) the Adviser is not (A) in violation of its certificate of incorporation or bylaws or (B) in default of (nor has any event occurred which with notice, lapse of time or both would constitute such default) 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 perform its obligations under which the Adviser is a party, or (C) in contravention of any law, regulation or rule or any decree, judgment or order applicable to the Adviser, except, with respect to clause (B) and (C), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires and in the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing withRegistration Statement, the Commission, General Disclosure Package and the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over Prospectus (including the Adviser or conflicts or issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) will conflict with or constitutes or will constitute a breach of or a default under, not (i) violate the certificate of incorporation or bylawsof the Adviser, or other organizational documents(ii) result in any default or the occurrence of any event which with notice, lapse of the Adviser time or (B) conflicts or will conflict with or constitutes or will both would constitute a material breach such default of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or (iii) contravene any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lienAdviser, charge or encumbrance upon any property or assets of the Adviser pursuant except, with respect to clause (ii) and (iii), to the terms of extent that any agreement such breach, violation or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should contravention would not reasonably be expected to have a material adverse effect on an Adviser Material Adverse Effect; and the ability execution, delivery and performance of this Agreement, the Investment Advisory 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) the certificate of incorporation of the Adviser, (ii) other organizational documents of the Adviser, (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 is a party or (iv) any law, regulation, rule or any decree, judgment or order applicable to perform its obligations under the Adviser, 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;
(v) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution Adviser; this Agreement and delivery by the other parties thereto, each constitutes the Investment Advisory Agreement constitute valid and legally binding agreement agreements of the Adviser, enforceable against provided, however, that the Adviser in accordance makes no representations or warranties with its terms, except as respect to the validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and and/or contribution hereunder or enforceability of any obligations that may be limited by federal or state securities laws, and subject to the qualification that Enforceability Exceptions;
(vi) the enforceability descriptions of the Trust's obligations hereunder Adviser contained in the Registration Statement, the General Disclosure Package and thereunder may be limited by bankruptcythe Prospectus are true, fraudulent conveyance, insolvency, reorganization, moratorium, accurate and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered complete in a proceeding in equity or at law.all material respects;
(fvii) The the Adviser has the 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 (or any amendment or supplement thereto) and under this Agreement and with respect to the Investment Advisory Agreement.;
(gviii) The description subsequent to the date of the Adviser most recent financial statements contained in the Registration Statement Statement, General Disclosure Package and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred been any event which should reasonably be expected to have a material adverse effect on change, in the ability business, financial condition, capitalization, prospects or regulatory status of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Adviser;
(jix) The the Adviser has such permitsall Consents and has made all necessary filings required under any federal, licensesstate, franchises local or foreign law, regulation or rule and authorizations of governmental or regulatory authorities ("permits") as are has obtained all necessary to own its properties and Consents from other persons, in order to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)business, except to the extent that where the failure to so have should obtain such Consents or make such filings would not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsis not in violation of, or after in default under, nor has the Adviser received notice or lapse of time would allow, any proceedings relating to revocation or termination thereof or results in any other material impairment modification of the rights of the Adviser under any such permitConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser, except where such revocation or modification would not, individually or in the revocationaggregate, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement.Material Adverse Effect;
(kx) Except as stated in this Agreement and in neither the Prospectus (and in any amendment or supplement thereto), the Adviser has not takenAdviser, nor will it taketo the Adviser’s knowledge, any of its affiliates has taken, directly or indirectly, without giving effect to any activities by the Underwriters, any action designed to designed, or which has constituted or might reasonably be expected under the Exchange Act, to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities; provided, and that any activity permitted pursuant to Rule 10b-18 under the 1934 Act will not be deemed a violation of this paragraph;
(xi) the Adviser is not aware that (A) any executive, key employee or significant group of employees of the Company, if any, or the Adviser, plans to terminate employment with the Company, the Adviser or (B) any such action taken executive, key employee or significant group of employees is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates 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;
(xii) 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;
(xiii) the operations of the Adviser who are is and has been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Adviser and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser 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 the Adviser Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser threatened;
(A) neither the Adviser nor any director or officer thereof nor, to the Adviser’s knowledge, any employee, agent or representative acting on behalf of the Adviser, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (B) the Adviser has conducted its business in compliance with applicable anti-corruption laws and has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (C) the Adviser will not underwriters use, directly or dealers participating in indirectly, the net proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the Shares.payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws;
(lxv) Each Prepricing Prospectus complied when filed with (A) neither the Commission in all material respects with Adviser, nor any director, officer or employee thereof, nor to the provisions Adviser’s knowledge, any controlled affiliate, representative or agent of the 1933 ActAdviser is a Person that is, or is owned or controlled by one or more Persons that are:
(i) the subject of any Sanctions, or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the 1940 Act Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Cuba, Iran, North Korea and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.Syria);
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Direct Lending Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect on change, in the ability condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser to perform and its obligations under this Agreement and the Advisory Agreement.
(d) Neither the executionsubsidiaries, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order oftaken as a whole, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.ability
Appears in 1 contract
Samples: Underwriting Agreement (Gabelli Convertible Securities Fund Inc /De)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated formed and validly existing in good standing under the laws of the State of DelawareCalifornia, with full corporate partnership power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign limited partnership and is in good standing in under the laws of each jurisdiction or place where which requires such qualification. KAEFTX, L.P., the nature subsidiary of the Adviser, is a limited partnership duly formed and validly existing in good standing under the laws of the State of Texas, with full partnership power and authority to own, lease and operate its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementassets.
(b) 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 Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending or, The Adviser has full partnership power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principals of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 ActActs, the Advisers Act, the Rules and Regulations 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this Agreement and the Advisory AgreementAgreement or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Adviser 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 Acts or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kh) Except as stated This Agreement and the Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or governmental agency or body or supervisory authority is required in connection with the transactions contemplated herein or in the Advisory Agreement other than (a) those that have been made or obtained under the Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus Prospectus, (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc., and (d) such other approvals as have been obtained.
(j) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement nor the consummation by the Company or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of limited partnership or agreement of limited partnership of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any amendment material lien, charge or supplement thereto), encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(k) The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed In the event that the Company or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Underwriters or counsel for the Underwriters in connection with the Commission in all material respects with the provisions offering of the 1933 ActSecurities shall be deemed a representation and warranty by the Adviser, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusas to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Kayne Anderson Energy Total Return Fund, Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material material, adverse effect affect on the ability condition (financial or other), general affairs, business, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and or the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Effect on the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation partnership agreement or bylaws, bylaws or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Aii) for such conflict, breach, default, violation or (B) as should lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment .
(j) None of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability this Agreement nor any of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust Value Line R 100 Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates except as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not occurred any event which should reasonably be expected to arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(ji) The Adviser has such licenses, permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; (ii) the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsallows or, or after notice or lapse of time time, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under subject in each case to such permits should not reasonably qualification as may be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and set forth in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.; and,
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Real Estate Income Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement, the Investment Advisory Agreement and the Advisory Structuring Fee Agreement.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the Trust Fund, the Additional Compensation Agreement or the Structuring Fee Agreement as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending orThe Adviser has full power and authority to enter into this Agreement, to the knowledge of Investment Advisory Agreement, the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Investment Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly and validly authorized by the Adviser, ; and this Agreement, the Investment Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as enforcement of rights to indemnity and contribution hereunder may be limited by federal or state states securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyanceinsolvency, insolvencyliquidation, receivership, conservatorship, reorganization, moratorium, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law) and fair dealing.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Investment Advisory Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Investment Advisory Agreement or the Structuring Fee Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Advisory AgreementAdviser 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 Act, the 1940 Act or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("Adviser permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)Prospectus, except to the extent that the failure to so have should would not reasonably be expected to have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations obligation under this Agreement, the Investment Advisory Agreement and the Structuring Fee Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such Adviser permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such Adviser permit, except where the revocation, termination or impairment of the Adviser's rights under such Adviser permits should would not reasonably be expected to have a Material Adverse Effect on the ability of the Adviser to perform its obligation under this Agreement, the Investment Advisory Agreement and the Structuring Fee Agreement.
(h) This Agreement, the Investment Advisory Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement comply in all material adverse effect respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) 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, the Additional Compensation Agreement or the Structuring Fee Agreement, except such as have been made or obtained under the Act and the 1940 Act 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 Prospectus.
(j) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement, nor the consummation by the Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the Agreement and Declaration of Trust or By-laws of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clauses (ii) or (iii) as would not have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement, the Investment Advisory Agreement or the Structuring Fee Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Gabelli Global Gold, Natural Resources & Income Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter that:as set forth below in this Section 2.
(a) The Adviser has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(b) The Adviser has been duly formed and is a corporation duly incorporated and validly existing and in good standing as a limited partnership under the laws of the State of Delaware, Delaware with full corporate power and authority to ownown or lease, lease as the case may be, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)enter into and perform its obligations under this Agreement, the Contribution Agreement, the Administration Agreement, the Trademark Agreement and the Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign limited partnership and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect as set forth on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionSchedule III hereto.
(c) There are no legal This Agreement has been duly authorized, executed and delivered by the Adviser. The Management Agreement has been duly authorized by the Adviser, and when executed and delivered by the Adviser, will constitute a legal, valid, binding and enforceable instrument of the Adviser (subject applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and to general principles of equity); the Contribution Agreement has been duly authorized, executed and delivered by each of the parties thereto and constitutes a legal, valid, binding and enforceable instrument of such parties (subject to bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and to general principles of equity); the Administration Agreement has been duly authorized by the Adviser, and when executed and delivered by the Adviser, will constitute a legal, valid, binding and enforceable instrument of the Adviser (subject to bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and to general principles of equity); the Trademark Agreement has been duly authorized by the Adviser, and when executed and delivered by the Adviser, will constitute a legal, valid, binding and enforceable instrument of the Adviser (subject to bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and to general principles of equity).
(d) No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving the Adviser or any of its respective properties or assets is pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserCompany Agreements, nor or the consummation by the Adviser of any of the transactions contemplated hereby or thereby (A) requires thereby, or on the financial condition, prospects, earnings, business or properties of the Adviser taken as a whole, whether or not arising from transactions in the ordinary course of business (collectively, a “Material Adverse Effect”), except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Adviser owns or leases or has access to obtain all properties and assets as are necessary to the conduct of its operations as presently conducted.
(f) The Adviser is not in violation or default of (i) any consentprovision of its declaration of trust, approvalcertificate of incorporation, authorization bylaws, certificate of limited partnership, partnership agreement, certificate of formation, operating agreement, charter or other order oforganizational documents, as applicable; (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or registration other agreement, obligation, condition, covenant or filing withinstrument to which it is a party or bound or to which its properties or assets is subject; or (iii) any law, ordinance, administrative or governmental rule or regulation applicable to the Company or of any decree of the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any courtcourt or any other governmental, regulatory, self-regulatory body, or administrative agency or other governmental body, agency or any official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be boundproperties, as applicable, except for such violation or materially violates default that would not have a Material Adverse Effect.
(g) No labor problem or will materially violate dispute with the employees of the Adviser exists or is threatened or imminent, and the Adviser is not aware of any material statuteexisting or imminent labor disturbance by the employees of any of its principal suppliers, lawcontractors, regulation tenants or judgmentcustomers, injunctionexcept as would not have a Material Adverse Effect, order and except as set forth in or decree applicable to contemplated in the Registration Statement and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Adviser is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the business in which it is engaged; all policies of insurance and fidelity or surety bonds insuring the Adviser or any of its properties or will result respective business, properties, assets, employees, officers, directors, members, managers and partners are in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of full force and effect; the Adviser pursuant to is in compliance with the terms of such policies and instruments; there are no claims by the Adviser under any agreement such policy or instrument to which it is a party or by which it may be bound or as to which any insurance company is denying liability or defending under a reservation of rights clause; the Adviser has not been refused any insurance coverage sought or applied for; and the Adviser has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(i) The Adviser possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local or non-U.S. regulatory authorities necessary to conduct their respective businesses, and the Adviser has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(j) Neither the Adviser nor, to the knowledge of the property Adviser, any trustee, member, manager, partner, director, officer, agent, employee or assets Affiliate of the Adviser is subjectaware of or has taken any action, except 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 case under clause 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” (Aas such term is defined in the FCPA) or (B) as should not reasonably be expected to have a material adverse effect on the ability any foreign political party or official thereof or any candidate for foreign political office, in contravention of the Adviser to perform its obligations under this Agreement FCPA; and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by to the other parties thereto, each constitutes the valid and legally binding agreement knowledge of the Adviser, enforceable against its Affiliates, have conducted their businesses in compliance with the Adviser in accordance with its terms, except as rights FCPA and have instituted and maintain policies and procedures designed to indemnity and contribution hereunder may be limited by federal or state securities lawsensure, and subject which are reasonably expected to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by bankruptcycontinue to ensure, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawcontinued compliance therewith.
(fk) The operations of the Adviser are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money Laundering 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 the Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
(l) Neither the Adviser nor, to the knowledge of the Adviser, any trustee, member, manager, partner, director, officer, agent, employee or Affiliate of the Adviser is currently subject to any U.S. sanctions administered by OFAC.
(m) The Adviser is duly registered as an investment adviser under the Advisers Act and 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 Management Agreement for the Company as contemplated by the Prospectus.
(n) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Management Agreement.
(go) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(jp) The Adviser has such permits, licenses, franchises and authorizations not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of governmental or regulatory authorities the Company ("permits") except as are necessary to own its properties and to conduct its business contemplated in the manner described in the Prospectus (and this Agreement). Any certificate signed by any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability officer of the Adviser and delivered to perform its obligations under the Advisory Agreement; Representatives or counsel for the Adviser has fulfilled and performed all its material obligations Underwriters in connection with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered thereby, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing in good standing as a limited liability company under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does would not have a material material, adverse effect on the ability condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for or the Trust Accounting Agreement as contemplated by the Preliminary Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commissionand Prospectus.
(c) There are no legal or governmental proceedings pending orThe Adviser has full power and authority to enter into this Agreement, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Management Agreement and the Advisory Accounting Agreement.
(d) Neither ; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Management Agreement and the Advisory Accounting Agreement have been duly and validly authorized by the Adviser, ; and this Agreement, the Management Agreement and the Advisory Accounting Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus (or any amendment or supplement thereto) and Prospectus and under this Agreement, the Management Agreement and the Advisory Accounting Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed is required to be described in the Registration Statement Preliminary Prospectus and the Prospectus that is not so described as required, (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should ii) could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Management Agreement or the Accounting 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, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and the Advisory AgreementProspectus (exclusive of any supplement thereto).
(jg) Since the date as of which information is given in the Preliminary Prospectus and Prospectus, except as otherwise stated therein, (i) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Preliminary Prospectus and Prospectus.
(h) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Preliminary Prospectus (and any amendment or supplement thereto)Prospectus, except to the extent that where the failure to so have should hold any such permit does not reasonably be expected to have a material material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement, the Advisory Management Agreement and the Accounting Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(i) This Agreement, the Management Agreement and the Accounting Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) 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 Management Agreement or the Accounting Agreement, except where such as have been made or obtained under the revocationAct, termination or impairment the 1940 Act and the rules and regulations of the Adviser's rights NASD and the NYSE and such as may be required under such permits should not reasonably be expected to have a material adverse effect on the ability blue sky laws of any jurisdiction in connection with the purchase and distribution of the Adviser to perform its obligations under Securities by the Advisory AgreementUnderwriters in the manner contemplated herein and in the Preliminary Prospectus and Prospectus.
(k) Neither the execution, delivery or performance of this Agreement, the Management Agreement or the Accounting Agreement, nor the consummation by the Fund or the Adviser of the transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of formation or limited liability company agreement of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Preliminary Prospectus (and in any amendment or supplement thereto)Prospectus, the Adviser has not taken, taken nor will it take, directly or indirectly, any action designed to or which might should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale security of the Shares, Fund in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(m) In the event that the Fund or the Adviser who makes available any promotional materials intended for use only by qualified 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 not underwriters reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or dealers participating counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered thereby, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Calamos Convertible & High Income Fund)
Representations and Warranties of the Adviser. The To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to each Underwriter thatthe Warranty Provider as follows, on and as of the date this Agreement is executed and delivered pursuant to Section 2.3 hereof and on and as of the Effective Date:
(a) The Adviser (i) is a corporation duly incorporated and organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate (ii) has the power and authority authority, and the legal right, to own, lease and operate own its properties assets and to conduct its transact the business as described in the Registration Statement and the Prospectus which it is engaged, (and any amendment or supplement to either of them), and iii) is duly registered and qualified to conduct its do business and is in good standing in under the laws of each jurisdiction where its ownership or place where the nature lease of its properties property or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify could not reasonably be expected to qualify does have an Adverse Effect, (iv) is in compliance with all Requirements of Law except where non-compliance could not reasonably be expected to have a material adverse effect on an Adverse Effect and (v) with respect to the ability Fund, is in compliance with all Requirements of Law, written policies of the Adviser, and fiduciary responsibilities except where non-compliance could not reasonably be expected to have an Adverse Effect.
(b) The Adviser has the power and authority, and the legal right, to execute, deliver and perform its obligations under this the Transaction Documents to which it is a party and has taken all necessary action required by applicable Requirements of Law to authorize the execution, delivery and performance of the Transaction Documents to which it is a party. Except as has been obtained, no consent or authorization of, filing with, or other act by or in respect of, any Government Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser of the Transaction Documents to which it is a party, other than such consents, authorizations, filings or acts the absence of which could not reasonably be expected to have an Adverse Effect. This Agreement and each other Transaction Document to which the Advisory AgreementAdviser is a party has been duly executed and delivered on behalf of the Adviser. Each Transaction Document to which the Adviser is a party, when executed and delivered, constitutes a legal, valid and binding obligation of the Adviser enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(bc) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party do not and will not violate any Requirement of Law or Contractual Obligation of the Adviser and will not result in, or require, the creation or imposition of any Lien on any of its property, assets or revenues, except where such violation or Lien could not reasonably be expected to have an Adverse Effect. The Adviser is not in violation of any Contractual Obligation, except where such violation could not reasonably be expected to have an Adverse Effect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Government Authority is pending or, to the Adviser’s knowledge, threatened by or against the Adviser or against any of its properties or revenues (i) asserting the invalidity or unenforceability of any of the Transaction Documents, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Transaction Documents, (iii) seeking any determination or ruling that could reasonably be expected to have an Adverse Effect, except as previously disclosed in writing to the Warranty Provider or (iv) asserting any violation by the Adviser or the Fund of the Investment Advisers Act or the Investment Company Act or the respective rules and regulations thereunder or alleging that the Adviser or the Fund committed or engaged in or attempted to commit or engage in any act, practice or course of business which is fraudulent, deceptive, or manipulative, except where such alleged violation could not reasonably be expected to have an Adverse Effect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Investment Advisers Act, ; and to the Advisers Act Rules and Regulations, best of the 1940 Act or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There Adviser’s knowledge there does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected to have a material adverse could adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to ; the knowledge Adviser is not prohibited by any provision of the AdviserInvestment Advisers Act or the Investment Company Act, threatened against or the Adviserrespective rules and regulations thereunder, that are required to be described from acting as an investment adviser of the Fund as contemplated hereunder and in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at lawStatement.
(f) The All factual information prepared and furnished by or on behalf of the Adviser has to the financial resources Warranty Provider and/or the Calculation Agent (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is true and accurate in all material respects on the date as of which such information is dated or certified and such information taken as a whole does not omit to state any material fact necessary for the performance of its services and obligations as contemplated to make such information in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreementcontext in which it is furnished not misleading.
(g) The description To the best of the Adviser Adviser’s knowledge, no statute, rule, regulation, order or publicly available interpretation of any such statute, rule, regulation or order by a Government Authority has been enacted or deemed applicable by any Government Authority that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof by the Adviser.
(h) The Trust is duly registered with the Commission as an open-end management investment company under the Investment Company Act and has been operated in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply compliance in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Investment Company Act and the Advisers Act Rules rules and Regulations.
(i) Except as disclosed in the Registration Statement regulations thereunder and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus prospectus relating to any Class of Shares and the Fund has not received any notice from the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the Registration Statement.
(i) The Underlying Fund is duly registered with the Commission as an open-end management investment company under the Investment Company Act and has been operated in compliance in all material respects with the Investment Company Act and the rules and regulations thereunder and the Commission has not issued any order preventing or suspending the use of any prospectus relating to any class of shares of the Underlying Fund and the Underlying Fund has not received any notice from the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the registration statement on Form N-1A currently in effect for the Underlying Fund. The Underlying Fund is managed in accordance with the investment objectives, strategies and fundamental investment restrictions detailed in the registration statement of such Underlying Fund in effect as of the date of this Agreement. The outstanding shares of each class of shares of the Underlying Fund held by the Fund are duly authorized and validly issued and are fully paid and nonassessable and conform in all respects to the description thereof contained in the registration statement with respect to such shares as in effect when such shares were issued.
(j) The DWS Cash Management QP Trust (A) is not required to be registered under the Securities Act or the ProspectusInvestment Company Act; (B) is managed in accordance with the requirements of Rule 2a-7 under the Investment Company Act (with the Adviser performing the duties assigned to the board of directors of a money market fund under Rule 2a-7); and (C) is managed in accordance with the investment objectives, strategies and investment restrictions detailed in its offering documentation as provided to the Warranty Provider and in effect as of the date of this Agreement. The outstanding shares of each class of shares of the DWS Cash Management QP Trust held by the Fund are duly authorized and validly issued and are fully paid and nonassessable and conform in all respects to the description thereof contained in the offering documentation with respect to such shares as in effect when such shares were issued.
(k) Except as previously disclosed in writing to the Warranty Provider, no employee, officer, trustee, investment adviser or principal underwriter of the Fund is ineligible or subject to disqualification pursuant to Section 9(a) or 9(b) of the Investment Company Act and there is no proceeding or investigation pending or, to the knowledge of the Adviser, threatened that would reasonably be expected to become the basis for any such ineligibility or disqualification. Except as previously disclosed in writing to the Warranty Provider, neither the Adviser, nor any “person associated with an investment adviser” (as defined in the Investment Advisers Act), is ineligible or subject to disqualification pursuant to Sections 203(e) or (f) of the Investment Advisers Act to serve as an investment adviser or as a person associated with an investment adviser and there is no proceeding or investigation pending or, to the knowledge of the Adviser, threatened that would reasonably be expected to become the basis for any such ineligibility or disqualification.
(l) No Class of Shares of the Fund has been authorized by the Board or is otherwise outstanding other than Class A, Class C, Class S and Institutional Class.
(m) The Fund is not required to register as a commodity pool under the Commodity Exchange Act.
(n) The Warranty Provider is a third-party beneficiary of the Custodian Instruction Agreement.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited liability company duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, would have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, that does or would have a Material Adverse Effect on the Adviser or does or would have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) (i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, (iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does not or would not have a Material Adverse Effect on the Adviser or does not or would not have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser's knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Fiduciary/Claymore MLP Opportunity Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Subadviser as follows:
(a) The execution, delivery, and performance by the Adviser of this Agreement are within its powers and have been duly authorized by all necessary action, and no action or filing with any governmental body, agency, or official is required for the execution, delivery, and performance of this Agreement, and the execution, delivery, and performance by the Adviser of this Agreement do not contravene or constitute a default under any provision of applicable law, rule, or regulation, the Adviser’s governing instruments or any agreement, judgment, injunction, order, decree, or other instrument binding upon the Adviser.
(b) The services to be provided by the Subadviser are within the scope of the services and investments authorized by the Advisory Agreement and the governing instruments of, and/or laws and regulations applicable to, the Adviser and that, subject to the terms of this Agreement, the Adviser is a corporation duly incorporated authorized to enter into this Agreement. The Adviser shall deliver to the Subadviser evidence of such authority as the Subadviser may reasonably require.
(c) If, at any time during the term of this Agreement, the Adviser discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and validly existing warranties in good standing this Agreement inaccurate or incomplete in any material respect, the Adviser will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto.
(d) The Adviser: (i) is registered as an investment adviser under the laws Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement or the Advisory Agreement; (iii) has met, and will continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory organization, necessary to be met in order to perform the State of Delaware, with full corporate power services contemplated by this Agreement and the Advisory Agreement; and (iv) has the authority to own, lease enter into and operate its properties and to conduct its business as described in perform the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under services contemplated by this Agreement and the Advisory Agreement.
(be) The Neither the Adviser nor any officer, director, partner, or employee of the Adviser is duly registered with subject to any event set forth in Section 9(a) of the Commission 1940 Act that would disqualify the Adviser from acting as an investment adviser to an investment company under the Advisers Act and is not prohibited by 1940 Act. The Adviser will promptly notify the Advisers Act, Subadviser of the Advisers Act Rules and Regulations, occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at lawotherwise.
(f) The Adviser has adopted and implemented a written code of ethics reasonably designed to comply with the financial resources necessary for requirements of Rule 17j-1 under the performance 1940 Act and written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to prevent violations of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement Advisers Act and the Advisory Agreementrules thereunder by the Adviser, its officers and employees. Upon reasonable notice to and reasonable request, the Adviser shall provide the Subadviser with access to the records relating to such policies and procedures as they relate to the Subadvised Portfolio.
(g) The description Adviser is either registered with the U.S. Commodity Futures Trading Commission as a “commodity pool operator” and a member in good standing of the Adviser in the Registration Statement and the Prospectus (and any amendment National Futures Association or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 is relying on an untrue statement of applicable exemption or exclusion from registration as a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleadingcommodity pool operator.
(h) The Advisory Agreement complies in all material respects Adviser is a corporation duly organized and validly existing under the laws of Delaware with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulationspower to carry on its business as it is now being conducted.
(i) Except as disclosed in This Agreement has been properly approved according to applicable laws rules and regulations by the Registration Statement shareholder(s) of each Fund, the Board and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability those directors of the Adviser Corporation who are not parties to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware interested persons of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Sharesparty.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser NAM represents and warrants to to, and agrees with, each Underwriter thatas follows:
(a) The Adviser NAM has been duly formed and is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability condition (financial or otherwise), business, earnings or properties of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) The Adviser NAM is duly registered with the Commission as an investment adviser under the Advisers Act and NAM is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for and the Trust Structuring Fee Agreements as contemplated by the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto)and the Prospectus. There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration NAM has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Adviser with Advisers Act reasonably designed to prevent violation of the CommissionAdvisers Act and the Advisers Act Rules and Regulations by NAM and its supervised persons.
(c) There are no legal or governmental proceedings pending orNAM has full power and authority to enter into this Agreement, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Management Agreement and the Advisory Agreement.
(d) Neither Structuring Fee Agreements; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser NAM of its obligations under, this Agreement, the Management Agreement and the Advisory Agreement Structuring Fee Agreements have been duly and validly authorized by NAM; and this Agreement, the AdviserManagement Agreement, and this Agreement and the Advisory Agreement Structuring Fee Agreements have been duly executed and delivered by the Adviser andNAM, and assuming due authorization, execution and delivery by the other parties thereto, each such agreement constitutes the valid and legally binding agreement of the AdviserNAM, enforceable against the Adviser NAM in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's NAM’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, each Preliminary Prospectus (or any amendment or supplement thereto) and the Prospectus and under this Agreement, the Management Agreement and the Advisory AgreementStructuring Fee Agreements, as applicable.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, 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 the Adviser or its property is pending or, to the best knowledge of the Adviser, threatened that (i) is required to be described in the Registration Statement, each Preliminary Prospectus and the Prospectus that is not so described as required, (ii) would reasonably be expected to have a material adverse effect on the ability of the Adviser to fulfill its obligations hereunder or under the Management Agreement and the Structuring Fee Agreements, as applicable or (iii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the 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 respective dates as of which information is given in each Preliminary Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) The Advisory Adviser possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(i) This Agreement, the Management Agreement complies and the Structuring Fee Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ij) Except 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 Management Agreement and the Structuring Fee Agreements, except such as disclosed have been made or obtained under the Act, the Exchange Act, the Advisers Act, the 1940 Act, the rules and regulations of FINRA 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 the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus.
(k) None of the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or the Management Agreement and the Structuring Fee Agreements nor the consummation by the Fund and the Adviser of the transactions herein or therein contemplated (including, without limitation, the consummation of the transactions on the terms contemplated by the Registration Statement, Preliminary Prospectus and the Prospectus), nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to, (i) the Organizational Documents of the Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Adviser is a party or bound or to which its property is subject, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to the Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Adviser or any of its properties.
(l) Except as stated in this Agreement and as described in the Registration Statement, each Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might that would constitute or that would reasonably be expected to cause or result in violation of federal securities laws, in stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Fund or the Adviser who other than (i) such actions as taken by the Underwriters that are affiliates of the Fund or the Adviser; and (ii) transactions under the Dividend Reinvestment Plan, so long as such actions are in material compliance with all applicable law.
(m) In the event that the Fund, the Adviser or the Subadviser 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 or will cause to be installed and maintained, 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 Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Adviser, threatened.
(o) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) Neither NAM nor, to the knowledge of NAM, any director, officer, agent, employee or affiliate of NAM is aware of or has taken any action in connection with NAM, 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, and NAM and, to the knowledge of NAM, its affiliates have conducted their businesses in compliance with the FCPA.
(q) Neither NAM nor, to the knowledge of NAM, any director, officer, agent, employee or affiliate of NAM is currently subject to any U.S. sanctions administered by OFAC; and NAM will not underwriters directly or dealers participating indirectly cause the Fund to use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Mortgage Opportunity Term Fund 2)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatof 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 Final Prospectus Supplement, 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 or any of its subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a 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 Change" or an "Adviser Material Adverse Effect," where the context so requires).
(b) The Adviser and each of its subsidiaries has been duly organized and is a corporation duly incorporated and validly existing corporation in good standing under the laws of the State of Delaware, with full and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the General Disclosure Package and the Final Prospectus (Supplement and any amendment or supplement to either 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; and each of them), the Adviser and its subsidiaries is duly registered and qualified to conduct its 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 place where the nature leasing of its properties property or the conduct of its business requires such registration or qualificationbusiness, except where the failure to so register qualify or be in good standing would not otherwise reasonably be expected to qualify does not have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(bc) 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 for the Trust Company as contemplated by the General Disclosure Package and the Final Prospectus (or any amendment or supplement thereto)Supplement. There does not exist any proceeding or, to the Adviser's knowledge, any facts or circumstances the existence of which should could reasonably be expected to have a material adverse lead to any proceeding, which might adversely affect on the registration of the Adviser with the Commission.
(cd) There are is no legal action, suit or proceeding or, to the knowledge of the Adviser or any of its subsidiaries, inquiry or investigation before or brought by any court or governmental proceedings pending agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened threatened, against or affecting the Adviser, that are Adviser which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser 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 is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement or the General Disclosure Package and/or the Final Prospectus (or any amendment or supplement Supplement, including ordinary routine litigation incidental to either of them) but are their business, would not described as required or that should reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(de) Neither the execution, delivery or performance Adviser nor any of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser its subsidiaries is in violation of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the its certificate of incorporation or bylawsin default in the performance or observance of any obligation, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material 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 is a party or by which the Adviser it or any of its properties them may be bound, or materially violates to which any of the property or will materially violate assets of the Adviser is subject (collectively, the "Adviser Agreements and Instruments"), or in violation of any material law, statute, lawrule, regulation or regulation, judgment, injunction, order or decree applicable except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect; 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 Shares and the use of the proceeds from the sale of the Shares as described in the Registration Statement, the General Disclosure Package and the Final Prospectus Supplement under the caption "Use of Proceeds") and compliance by the Adviser with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or any without the giving of its properties notice or will passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement Adviser Agreements except for such violations or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should defaults that would not reasonably be expected to have a material adverse effect on result in an Adviser Material Adverse Effect, nor will such action result in any violation of the ability provisions of 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 any of its assets, properties or operations except for such violations that would not reasonably be expected to perform its obligations under this result in an Adviser Material Adverse Effect.
(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. This Agreement, the Investment Advisory Agreement. The Agreement and the Administration Agreement are valid and binding obligations of the Adviser is not or the Administrator, as 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 order of proceeding therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and agency is necessary or required for the performance by the Adviser of its obligations underhereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Shares as described in the Registration Statement, the General Disclosure Package and the Advisory Agreement Final Prospectus Supplement under the caption "Use of Proceeds"), except such as have been duly and validly authorized by already obtained under the Adviser, and this Agreement Act and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law1940 Act.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(gh) The description of the Adviser contained in the Registration Statement Statement, the General Disclosure Package and the Final Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will Supplement does not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under in which they were made) , not misleading.
(hi) The Advisory Agreement complies Adviser possesses such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it ("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; the Adviser is in compliance with the terms and conditions of all material respects with such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect; all applicable provisions of the 1940 ActGovernmental Licenses are valid and in full force and effect, except when the 1940 Act Rules invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and Regulationseffect would not, singly or in the Advisers Act aggregate, result in an Adviser Material Adverse Effect; and the Advisers Act Rules and Regulations.
(i) Except as disclosed Adviser has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the Registration Statement and aggregate, if the Prospectus (subject of an unfavorable decision, ruling or any amendment or supplement to either of them)finding, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should would reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(j) The Adviser has is not 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 permitsexecutive or key employee is subject to any non-compete, licensesnondisclosure, franchises and authorizations confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of governmental the Company or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment Adviser except where such termination or supplement thereto), except to the extent that the failure to so have should violation would not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly organized and is a corporation duly incorporated and validly existing in good standing as a limited liability company under the laws of the State of Delaware, with full corporate power and authority to conduct all of the activities conducted by it, to own, lease and or operate its properties and to conduct its business as described in the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus and to execute and deliver this Agreement;
(and any amendment or supplement to either of them), and b) the Adviser is duly registered and qualified to conduct its do business and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, result in a material adverse effect on the ability business, financial condition, capitalization or regulatory status of the Adviser Adviser, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Advisory Agreement and or the Advisory Administration Agreement., as applicable (collectively, an “Adviser Material Adverse Effect”);
(bc) The the Adviser is (i) duly registered with the Commission as an investment adviser Adviser under the Advisers Act Act, and is (ii) not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under as the Advisory Agreement Adviser for the Trust Company as contemplated by the Investment Advisory Agreement, the Registration Statement, the Pre-Pricing Prospectus (or any amendment or supplement thereto). There and the Prospectus, and there does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(cd) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may officers or members are or would be bound, a party or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or of which any of its properties are or will 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;
(e) the Adviser is not in breach or violation of, or in default under (nor has any event occurred which with notice, lapse of time, or both would result in any breach or violation of, constitute a default under or give the creation or imposition 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 certificate of formation or limited liability company operating agreement, or (ii) any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it any of its properties may be bound of affected, or (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to which any of the property or assets of the Adviser is subjector its properties;
(f) this Agreement, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Investment Advisory Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Administration Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser andAdviser; this Agreement, assuming due authorization, execution the Investment Advisory Agreement and delivery by the other parties thereto, each constitutes the valid and legally binding agreement Administration Agreement do not violate any of the Adviser, enforceable against the Adviser 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 applicable provisions of the Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to Investment Company Act or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.the Advisers Act;
(fg) The the Adviser has the financial financial, human and other resources available to it necessary for the performance of its services and obligations as contemplated in the Pre-Pricing Prospectus, the Prospectus (or any amendment or supplement thereto) and the Registration Statement and under this Agreement, the Investment Advisory Agreement and the Advisory Administration Agreement.;
(gh) The neither (i) the execution and delivery by the Adviser of this Agreement, the Advisory Agreement or the Administration Agreement nor (ii) the consummation by the Adviser of the transactions contemplated by, or the performance of its obligations herein or therein will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which, with notice, lapse of time or both, would reasonably be expected to result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Adviser pursuant to) (A) the organizational documents of the Adviser, (B) any material agreement to which it is a party or by which any of its properties may be bound or affected, or (C) any federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), or (E) any decree, judgment or order applicable to the Adviser except, with respect to clauses (B) and (C), to the extent that such contravention would not have an Advisor Material Adverse Effect;
(i) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ) is required for the consummation of the transactions contemplated in, or the performance by the Adviser of its obligations under this Agreement or the Investment Advisory Agreement and Administration Agreement, except (i) such as have been obtained under the Act, the Investment Company Act, or the Advisers Act and (ii) such as may be required under state securities or blue sky laws;
(j) the description of the Adviser and its business and the statements attributable to the Adviser in the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions requirements of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations Act and the Advisers Investment Company Act Rules and Regulations and did not and will do not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.;
(hk) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as date of which such information is given in the Registration Statement Pre-Pricing Prospectus and the Prospectus (or any amendment or supplement to either of them)Prospectus, there has not occurred been any event which should reasonably be expected to have a material adverse effect on change, or any development involving a prospective material adverse change, in the ability business, financial condition, capitalization or regulatory status of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permitsAdviser, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of would otherwise prevent the Adviser to perform from carrying out its respective obligations under the Investment Advisory Agreement or the Administration Agreement; , as appropriate;
(l) [the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsis not aware that (i) any executive, key employee or after notice or lapse significant group of time would allow, revocation or termination thereof or results in any other material impairment employees of the rights Company or the Adviser, as applicable, plans to terminate employment with the Company or the Adviser or (ii) any such executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Adviser under any such permit, except where the revocation, such termination or impairment violation would not have a Material Adverse Effect or an Adviser Material Adverse Effect;]
(m) except for stabilization activities conducted by the Underwriters and the issuance or purchase of Shares pursuant to the Company's Dividend Reinvestment Plan effected following the date on which the distribution of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on Shares is completed in accordance with the ability policies of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except Company as stated in this Agreement and set forth in the Prospectus (and in any amendment or supplement thereto)Prospectus, the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to designed, or which might reasonably be expected to cause or result in in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock in violation of applicable federal securities laws.
(n) 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
(o) the Adviser maintains and will cause any securities issued by sub-administrator to maintain 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 Trust Administration Agreement are recorded as necessary to facilitate the sale or resale permit preparation of the SharesCompany’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.
(p) 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 persons of the Foreign Corrupt Practices Act;
(q) the operations of the Adviser are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator or non-governmental authority involving the Adviser with respect to the Money Laundering Laws is pending or, to the Adviser’s knowledge, threatened;
(r) the Adviser is not aware a lender (other than for trade payables) to and does not own any equity interests in any entity, including, without limitation, the entities listed on the Schedule of Investments contained in the Pre-Pricing Prospectus and the Prospectus that is subject to sanctions administered by OFAC;
(s) neither the Adviser nor, to the knowledge of the Adviser, any such action taken director, officer, agent, employee or to be taken by any affiliates affiliate of the Adviser who are is currently subject to any U.S. sanctions administered by OFAC; and
(t) the Adviser does not underwriters do business with the government of Cuba within the meaning of Section 517.075, Florida Statutes. In addition, any certificate signed by any officer of the Adviser and delivered to the Underwriters or dealers participating counsel for the Underwriters in connection with the offering of the SharesShares shall be deemed to be a representation and warranty by the Adviser, as to matters covered thereby, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (MediaTech Investment Corp.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to and agrees with each Underwriter of the Underwriters that:
(a) The Adviser has been duly organized, is a corporation duly incorporated and validly existing as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or to qualify does be in good standing would not have (i) a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business, operations, properties, management or personnel of the Adviser, whether or not arising from transactions in the ordinary course of business of the Adviser, or (ii) an adverse effect on the power or ability of the Adviser to perform its obligations under this Agreement or to consummate any of the transactions contemplated by the Time of Sale Prospectus and the Advisory AgreementProspectus ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”).
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Investment Advisory Agreement for as an investment adviser to the Trust Fund as contemplated by the Time of Sale Prospectus (and the Prospectus, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto). There does not exist any proceeding which should reasonably be expected proceedings therefor initiated or, to have a material adverse affect on the registration of the Adviser with Adviser’s knowledge, threatened by the Commission.
(c) There are no legal or governmental proceedings pending orEach of this Agreement, to the knowledge of Investment Advisory Agreement, the AdviserSub-Advisory Agreement, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Structuring Fee Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Syndication Fee Agreement or the Advisory Agreement by the Adviser, nor the consummation by between the Adviser of and Xxxxxx Xxxxxxx & Co. LLC (the transactions contemplated hereby or thereby (A) requires “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing withand Citigroup Global Markets Inc. (the “Citigroup Fee Agreement”), the CommissionStructuring Fee Agreement between the Adviser and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “BAML Fee Agreement”), the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over Structuring Fee Agreement between the Adviser or conflicts or will conflict and Xxxxx Fargo Securities, LLC (the “Xxxxx Fee Agreement”) and the Structuring Fee Agreement between the Adviser and Xxxxxxx Xxxxx & Associates, Inc. (the “Xxxxxxx Xxxxx Xxx Agreement” and together with or constitutes or will constitute a breach of or a default underthe Xxxxxx Xxxxxxx Fee Agreements, the certificate of incorporation or bylawsCitigroup Fee Agreement, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this BAML Fee Agreement and the Xxxxx Fee Agreement, the “Fee Agreements”) (this Agreement, the Investment Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Sub-Advisory Agreement and the Advisory Agreement have Fee Agreements are referred to herein, collectively, as the “Adviser Agreements”) has been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser. Each of the Adviser andAgreements, assuming the due authorization, execution and delivery by the other parties thereto, each constitutes the is a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited to equitable principles of general applicability or by federal or state securities laws, laws and subject to applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and similar laws affecting creditors’ rights generally. Each of this Agreement, the qualification that Investment Advisory Agreement and the Sub-Advisory Agreement comply with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations thereunder applicable to the Adviser. The representations and warranties made by the Adviser in this paragraph in regards to the Fee Agreements are made only as of the date of this Agreement and the Closing Date and the Adviser makes no representation or warranty as to the enforceability of the Trust's Fee Agreements against, or as to a conflict or breach of law or the need for any consent, approval or authorization owing to, or as result of or arising out of the legal or regulatory status of, any Underwriter party to such an agreement.
(d) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations hereunder under, the Adviser Agreements will not contravene (i) any provision of law applicable to the Adviser, (ii) the operating agreement or by-laws of the Adviser, (iii) any agreement to which the Adviser is a party, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether foreign or domestic, except, in the case of (i), (iii) and thereunder (iv) above, to the extent any such contravention would not have an Adviser Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Adviser of its obligations under the Adviser Agreements, except such as have been obtained and as may be limited required by bankruptcythe Acts, fraudulent conveyancethe Advisers Act, insolvencythe Exchange Act or the applicable Rules and Regulations, reorganizationor 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 such as which the failure to obtain would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(e) There are no legal or governmental proceedings pending or, moratoriumto the Adviser’s knowledge, threatened to which the Adviser is a party or to which any of the properties of the Adviser is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other laws relating documents applicable to the Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or affecting creditors' rights generally the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Acts and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawthe applicable Rules and Regulations.
(f) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits 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 Time of Sale Prospectus and the Prospectus, except to the extent described in the Time of Sale Prospectus and the Prospectus or that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Time of Sale Prospectus and the Prospectus and by the Adviser Agreements.
(or any amendment or supplement theretoh) and under this The Investment Advisory Agreement and the Sub-Advisory Agreement are in full force and effect and neither the Fund, in the case of the Investment Advisory Agreement, nor the Adviser, in the case of the Investment Advisory Agreement and the Sub-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 under such document.
(gi) The description of the Adviser in (i) the Registration Statement does not, and on the Prospectus (and Closing Date will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 any material fact necessary to make such information not misleading, and (ii) the Time of Sale Prospectus and the Prospectus does not, and on the Closing Date will not, contain any untrue statement of a material fact required or omit to be stated therein or state any material fact necessary to make the statements therein (such information, in the case of the Prospectus, in light of the circumstances under which they such statements were made) , not misleading.
(hj) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, business prospects, properties or operations of the Adviser from that set forth in the Time of Sale 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 Time of Sale Prospectus.
(k) Neither the Adviser nor any of its subsidiaries, directors or officers, nor to the Adviser’s knowledge, any of its employees, affiliates or any agent or representative of it or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or 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) to improperly influence official action or secure an improper advantage; and the Adviser and its subsidiaries and, to the Adviser’s knowledge, its affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The Advisory Agreement complies operations of the Adviser and its subsidiaries are and have been conducted at all times in all material respects compliance with all applicable provisions financial recordkeeping and reporting requirements, including those of the 1940 Bank Secrecy Act, as amended by Title III of the 1940 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act Rules of 2001 (USA PATRIOT Act), and Regulationsany applicable anti-money laundering statutes of jurisdictions where the Adviser conducts business, the Advisers Act rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Advisers Act Rules “Adviser Anti-Money Laundering Laws”), and Regulationsno action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or any of its subsidiaries with respect to the Adviser Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser, threatened.
(i) Except as disclosed in The Adviser represents that neither it nor any of its subsidiaries, directors or officers, nor to the Registration Statement and the Prospectus (Adviser’s knowledge, any of its employees, affiliates or any amendment agent or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability representative of the Adviser to perform or any of its obligations under this Agreement subsidiaries or affiliates, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the subject of any Sanctions, nor (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and the Advisory AgreementSyria).
(jii) The Adviser has such permits, licenses, franchises represents and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent covenants that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor it will it takenot, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which might reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in stabilization or manipulation a violation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of the Adviser who are not underwriters or dealers Person (including any Adviser Person participating in the offering of the Sharesoffering, whether as underwriter, advisor, investor or otherwise).
(liii) Each Prepricing Prospectus complied when filed The Adviser represents and covenants that, for the past 5 years, it and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Commission in all material respects with the provisions time of the 1933 Act, dealing or transaction is or was the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use subject of any Prepricing Prospectus or the ProspectusSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Prudential Short Duration High Yield Fund, Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited liability company duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties property or assets and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties property or assets or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or, to the Adviser's knowledge, any facts or circumstances the existence of which should could reasonably be expected lead to have a material adverse any proceeding, which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its property or assets is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser official, (ii) violates or will violate or conflicts or will conflict with or constitutes or will constitute a breach any provision of or a default under, the certificate of incorporation formation or bylaws, by-laws or other organizational documents, documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties property or assets or (iii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its property or assets may be bound, or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, terms except as rights to indemnity and contribution hereunder may be limited by under federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 ActActs, the Advisers Act, the Rules and Regulations Regulations, and the Advisers Act Rules and Regulations and such description did not not, as of the effective date of the Registration Statement and the date hereof, and will not not, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of the Prospectus, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Fund, and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, property, net assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and assets and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits permits, and to the Adviser's knowledge no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus (and any supplement thereto), termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in Adviser.
(k) Charles M. Royce is the offering validly apxxxxxxx Xxxxxxxxt of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with In the Commission event that the Fund or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof.
(m) This Agreement and the Investment Advisory Agreement comply in all material respects with the all applicable provisions of the 1933 1940 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending , the use of any Prepricing Prospectus or Advisers Act and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Royce Micro Cap Trust Inc /Md/)
Representations and Warranties of the Adviser. The To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to each Underwriter thatthe Warranty Provider as follows, on and as of the date this Agreement is executed and delivered pursuant to Section 2.3 hereof and on and as of the Effective Date:
(a) The Adviser (i) is a corporation duly incorporated and organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate (ii) has the power and authority authority, and the legal right, to own, lease and operate own its properties assets and to conduct its transact the business as described in the Registration Statement and the Prospectus which it is engaged, (and any amendment or supplement to either of them), and iii) is duly registered and qualified to conduct its do business and is in good standing in under the laws of each jurisdiction where its ownership or place where the nature lease of its properties property or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify could not reasonably be expected to qualify does have an Adverse Effect, (iv) is in compliance with all Requirements of Law except where non-compliance could not reasonably be expected to have a material adverse effect on an Adverse Effect and (v) with respect to the ability Fund, is in compliance with all Requirements of Law, written policies of the Adviser Adviser, and fiduciary responsibilities except where non-compliance could not reasonably be expected to perform its obligations under this Agreement and the Advisory Agreementhave an Adverse Effect.
(b) The Adviser has the power and authority, and the legal right, to execute, deliver and perform its obligations under the Transaction Documents to which it is duly registered a party and has taken all necessary action required by applicable Requirements of Law to authorize the execution, delivery and performance of the Transaction Documents to which it is a party. Except as has been obtained, no consent or authorization of, filing with, or other act by or in respect of, any Government Authority or any other Person is required in connection with the Commission as an investment adviser under execution, delivery, performance, validity or enforceability by or against the Advisers Act and Adviser of the Transaction Documents to which it is a party, other than such consents, authorizations, filings or acts the absence of which could 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this an Adverse Effect. This Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or each other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument Transaction Document to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have has been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement on behalf of the Adviser. Each Transaction Document to which the Adviser is a party, when executed and delivered, constitutes a legal, valid and binding obligation of the Adviser enforceable against the Adviser it in accordance with its terms, except as rights to indemnity and contribution hereunder enforceability may be limited by federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other moratorium or similar laws relating to or affecting the enforcement of creditors' ’ rights generally and by general equitable principles (whether enforcement is considered in a proceeding sought by proceedings in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to and agrees with each Underwriter of the Underwriters as of the date hereof that:
(a) The Adviser has been duly organized, is validly existing as a corporation duly incorporated and validly existing in good standing under the laws of the State jurisdiction of Delawareits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or be in good standing (i) would not reasonably be expected to qualify does not have a material adverse effect on the ability Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business, operations or properties of the Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect”).
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Advisory Investment Management Agreement for as the Trust investment adviser to the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus (and the Prospectus, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto). There does not exist any proceeding which should reasonably be expected proceedings therefor initiated or, to have a material adverse affect on the registration knowledge of the Adviser with Adviser, threatened by the Commission.
(c) This Agreement and each of the Investment Management Agreement, the Administration Agreement, the Structuring and Syndication Fee Agreement between the Adviser and Xxxxxx Xxxxxxx & Co. LLC dated November [ ], 2017 (the “Xxxxxx Xxxxxxx Fee Agreement”), [the Structuring Fee Agreement between the Adviser and [ ] dated November [ ], 2017 (the “[ ] Fee Agreement”), the Structuring Fee Agreement between the Adviser and [ ] dated November [ ], 2017 (the “[ ] Fee Agreement”) and the Fee Agreement between the Adviser and [ ] dated November [ ], 2017 (the “[ ] Fee Agreement”),] (the Xxxxxx Xxxxxxx Fee Agreement, the [ ] Fee Agreement, the [ ] Fee Agreement, the [ ] Fee Agreement are referred to herein, collectively, as the “Fee Agreements”] and the Investment Management Agreement, the Administration Agreement and the Fee Agreements are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Adviser. Each of this Agreement and the Adviser Agreements complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Adviser Agreements is a valid and binding agreement of the Adviser, enforceable in accordance with its terms, except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(d) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under this Agreement and the Adviser Agreements will not contravene (i) any provision of applicable law or (ii) the certificate of incorporation or by-laws of the Adviser, or (iii) any agreement or other instrument binding upon the Adviser that is material to the Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Adviser of its obligations under this Agreement and the Adviser Agreements, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the Adviser, that are required Adviser is a party or to be which any of the properties of the Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement or Statement, the Time of Sale Prospectus and the Prospectus (and proceedings that would not, individually or any amendment in the aggregate, have an Adviser Material Adverse Effect, or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the power or ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of to consummate the transactions contemplated hereby by the Registration Statement, the Time of Sale Prospectus and the Prospectus or thereby (Aii) requires that are required to be described in the Adviser to obtain any consentRegistration Statement, approvalthe Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, authorization regulations, contracts or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree documents applicable to the Adviser or any of its properties or will result that are required to be described in the creation Registration Statement, the Time of Sale Prospectus or imposition of any material lien, charge the Prospectus or encumbrance upon any property or assets of the Adviser pursuant to be filed as exhibits to the terms of any agreement Registration Statement that are not described or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) filed as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at lawrequired.
(f) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits 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 Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Time of Sale Prospectus (or any amendment or supplement thereto) and under the Prospectus and by this Agreement and the Advisory AgreementAdviser Agreements.
(gh) The Each of the Investment Management Agreement and Administration Agreement is in full force and effect and neither the Fund nor the Adviser 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.
(i) All information furnished by the Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Adviser in Adviser, does not, and on the Registration Statement and the Prospectus (and Closing Date will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of the Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(hj) The Advisory Agreement complies There has not occurred any material adverse change, or any development that could reasonably be expected to result in all a material respects with all applicable provisions adverse change, in the condition (financial or otherwise) or in the prospects, earnings, business, operations or properties of the 1940 ActAdviser from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the 1940 Act Rules and Regulations, Adviser which are material to the Advisers Act and Adviser other than those in the Advisers Act Rules and Regulationsordinary course of its business or as described in the Time of Sale Prospectus.
(i) Except as disclosed in Neither the Registration Statement and the Prospectus (Adviser nor any of its subsidiaries, affiliates, directors, stockholders, officers or any amendment or supplement to either of them)employees, subsequent nor, to the respective dates as of which such information is given in the Registration Statement and the Prospectus (Adviser’s knowledge, any agent or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability representative of the Adviser or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permitspay, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment authorization or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability approval of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowspayment, giving or after notice receipt of money, property, gifts or lapse anything else of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it takevalue, directly or indirectly, to any action Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) the Adviser will not use, directly or which might reasonably be expected to cause or result in stabilization or manipulation indirectly, the proceeds of the price offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Sharesapplicable anti-corruption laws.
(l) Each Prepricing Prospectus complied when filed The operations of the Adviser and its subsidiaries are and have been conducted at all times in compliance with the Commission in all material respects 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 any of its subsidiaries with respect to the provisions Anti-Money Laundering Laws is pending or, to the knowledge of the 1933 ActAdviser, threatened.
(i) Neither the Adviser nor any of its subsidiaries, any directors, stockholders, officers or employees thereof, nor, to the Adviser’s knowledge, any agent, affiliate or representative of the Adviser or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the subject of any Sanctions, nor (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Adviser will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Adviser Person: (A) to fund or facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Adviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five (5) years, the 1940 Act Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Rules and Regulations. The Commission has not issued any order preventing time of the dealing or suspending transaction is or was the use subject of any Prepricing Prospectus or the ProspectusSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Invesco High Income 2024 Target Term Fund)
Representations and Warranties of the Adviser. The Adviser --------------------------------------------- represents and warrants to each the Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of [Delaware], with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an investment adviser 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 Advisory Agreement for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the performance of the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsby-laws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its termsterms (subject to the qualification that the enforceability of the Adviser's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, and to general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law), 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply complies in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ig) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Adviser or the Fund and that is required to be disclosed in the Registration Statement or the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permitsApermits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; (ii) the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, ; and (iii) except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and described in the Prospectus (and in any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser has not takenAdviser, nor will it takeexcept where the failure of (i), directly (ii), or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or (iii) to be taken by any affiliates of the Adviser who are not underwriters accurate would not, individually or dealers participating in the offering of aggregate, have a Material Adverse Effect on the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited liability company duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify qualify, either alone or in the aggregate, does not or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under either of the Advisory Agreement Agreements for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should which, if determined adversely with respect to the Adviser, would reasonably be expected to have a material adverse affect effect on the registration of the Adviser with the Commission.
(c) The Adviser is not in violation of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act or the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser or any decree of the Commission, the NASD, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser. The Adviser maintains and will maintain processes, systems and controls sufficient to provide reasonable assurances that the Adviser complies in all material respects and will continue to comply in all material respects with the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser and any decree of the Commission, the NASD, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser.
(d) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should that, if determined adversely with respect to the Adviser, would have or would reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on its ability of the Adviser to perform its obligations under this Agreement and either of the Advisory AgreementAgreements.
(de) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the AdviserAgreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser (except as referred to in the Prospectus or the Registration Statement and such as have been already obtained) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation limited liability company agreement or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should which does not or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does not or would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or either of the Advisory AgreementAgreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does not or would not reasonably be expected to have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or either of the Advisory Agreements.
(ef) The Adviser has the power and authority to enter into this Agreement and each of the Advisory Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement and each of the Advisory Agreement Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each constitutes of the Advisory Agreements constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws (whether statutory or decisional) relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(fg) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or either of the Advisory AgreementAgreements.
(gh) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the applicable provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description of the Adviser and the statements attributable to the Adviser in the Registration statement or the Prospectus did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(hi) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has not occurred any event that would reasonably be expected to have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or each of the Advisory Agreements.
(j) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that any failure to have such permits would not reasonably be expected to have a Material Adverse Effect on the ability of the Adviser to perform its obligations under each of the Advisory Agreements.
(k) This Agreement and the Advisory Agreements complies in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kl) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor will it take, directly or indirectly, taken any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Claymore/Raymond James SB-1 Equity Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing in good standing and has a legal existence under the laws of the State of Delaware, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation in each jurisdiction where the failure to do so would have a material adverse effect and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementjurisdiction.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Preliminary Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on and the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending or, The Adviser has full power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Management Agreement.
(d) Neither ; the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Management Agreement have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus (or any amendment or supplement thereto) and the Prospectus and under this Agreement and the Advisory Management Agreement.
(ge) The description of the Adviser and its business and the statements attributable to the Adviser in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions of Since the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates date as of which such information is given in the Registration Statement Preliminary Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Preliminary Prospectus and Prospectus.
(g) No action, suit or proceeding by or before any court or governmental agency, authority or body or any amendment arbitrator involving the Adviser or supplement its property is pending or, to either the best knowledge of them)the Adviser, there has not occurred any event which should threatened that (i) could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Management Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Fund, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and the Advisory AgreementProspectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Adviser that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, or the Act Rules and Regulations.
(jh) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Preliminary Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) 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 Management Agreement, except where such as have been made or obtained under the revocation, termination or impairment Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on Securities by the ability of Underwriters in the Adviser to perform its obligations under manner contemplated herein and in the Advisory AgreementPreliminary Prospectus and the Prospectus.
(k) Except as stated in Neither the execution, delivery or performance of this Agreement and the Management Agreement, nor the consummation by the Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the organizational documents of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the Prospectus creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(and in any amendment or supplement thereto), the l) The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser. Any certificate signed by any officer of the Adviser who are not underwriters and delivered to the Representatives or dealers participating counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Highland Distressed Opportunities, Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material adverse effect on the ability condition (financial or other), general affairs, business, properties, net assets or results of operations of the Adviser to perform its obligations under this Agreement and or the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Effect on the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation partnership agreement or bylaws, bylaws or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Aii) for such conflict, breach, default, violation or (B) as should lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business, and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment .
(j) None of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability this Agreement nor any of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Energy Notes or of any securities issued by the Trust Fund to facilitate the sale or resale of the SharesEnergy Notes, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Energy Income & Growth Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware corporation, in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus, the Prospectus and the Registration Statement and to execute and deliver this Agreement; the Prospectus (Adviser has full power and any amendment or supplement authority to either of them), execute and deliver the Investment Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, constitute a material adverse effect on change in the ability business, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Management Agreement and the Advisory Agreement.(collectively, a “Material Adverse Change”);
(b) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Advisory Investment Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(c) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser or any of its officers or members are or would be a party or of which any of their properties are or would be subject at law or in equity, that are required to be described 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 Statement aggregate, a Material Adverse Change, or (B) preventing the Prospectus consummation of the transactions contemplated hereby;
(d) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery result in any breach or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order violation of, constitute a default under or registration give the holder of any indebtedness (or filing withperson acting on such holder’s behalf), the Commissionright to require the repurchase, the NASDredemption or repayment of all or part of such indebtedness under) (i) its charter, any state securities commissionbylaws, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsformation, limited liability company operating agreement, or other organizational documents, of the Adviser as applicable, or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute a Material Adverse Change, and the execution, delivery and performance of this Agreement, and the Investment Management 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 of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under Material Adverse Change;
(e) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser Adviser, and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject to the qualification that (i) the enforceability of the Trust's obligations hereunder and thereunder thereof may be limited by bankruptcy, fraudulent conveyancereorganization, insolvency, reorganizationmoratorium (including, moratoriumwithout limitation, and other all laws relating to fraudulent transfers) or similar laws now or thereafter in effect affecting creditors' ’ rights generally and (ii) rights to indemnification and contribution may be limited by general equitable principles of general applicability whether enforcement is considered in a proceeding in of equity or at law.in law or by state or federal securities laws or the policies underlying such laws;
(f) The the description of the Adviser contained in the Preliminary Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) the Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto) and the Registration Statement and under this Agreement and the Advisory Investment Management Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.;
(h) The Advisory Agreement complies in all material respects with all applicable provisions subsequent to the date of the 1940 ActRegistration Statement, the 1940 Act Rules and Regulations, the Advisers Act Preliminary Prospectus and the Advisers Act Rules and Regulations.Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization or regulatory status of the Adviser, or that would otherwise prevent the Adviser from carrying out its obligations under the Investment Management Agreement;
(i) Except as disclosed the Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in order to conduct its business, except where the failure to obtain such Consents would not constitute a Material Adverse Change; the Adviser is not in violation of, or in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)aggregate, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have constitute a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Material Adverse Change;
(j) The the Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment of its partners, officers, affiliates or supplement thereto), except to the extent that the failure to so controlling persons have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and ;
(k) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, the Adviser plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute a Material Adverse Change; and
(l) Each Prepricing Prospectus complied when filed the Adviser, although not currently required to comply with the Commission in all material respects with the provisions Section 404 of the 1933 Xxxxxxxx-Xxxxx Act, maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the 1940 Act Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Rules and Regulations. The Commission has not issued any order preventing Company’s assets is permitted only in accordance with its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Kelso Capital CORP)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.the
Appears in 1 contract
Samples: Underwriting Agreement (Royce Otc Micro Cap Fund Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of Adviser, Sub-Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under either of the Advisory Agreement Agreements for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect effect on the registration of the Adviser with the Commission.
(c) The Adviser is not in violation of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act or the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser or any decree of the Commission, the NASD, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser. The Adviser maintains and will maintain processes, systems and controls sufficient to provide reasonable assurances that the Adviser complies and will continue to comply with the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations, any law, ordinance, administrative or governmental rule or regulation applicable to the Adviser and any decree of the Commission, the NASD, any national securities exchange, any arbitrator, any court or any regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser.
(d) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to could result in any Material Adverse Change in the Adviser or that may have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or either of the Advisory AgreementAgreements.
(de) Neither the execution, delivery or performance of this Agreement, the Subscription Agreement, the Agreement between the Adviser and the Sub-Adviser dated August 1, 2003, setting forth the basic economic terms and material conditions and provisions governing their relationship (the "Advisory Terms Agreement") or either of the Advisory Agreement by the AdviserAgreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation limited partnership agreement or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement, the Subscription Agreement and or either of the Advisory AgreementAgreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(ef) The Adviser has full power and authority to enter into this Agreement, the Subscription Agreement and each of the Advisory Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Subscription Agreement and each of the Advisory Agreement Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement, the Subscription Agreement and each of the Advisory Agreement Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(fg) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement, the Subscription Agreement and or either of the Advisory AgreementAgreements.
(gh) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the applicable provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(hi) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has not occurred any event that should reasonably be expected to have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or each of the Advisory Agreements.
(j) The Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that any failure to have such permits should not reasonably be expected to have a material, adverse effect on the ability of the Adviser to perform its obligations under each of the Advisory Agreements.
(k) This Agreement complies in all material respects with all and the Advisory Agreements each do not violate any applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kl) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor will it take, directly or indirectly, taken any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First Trust/Four Corners Senior Floating Rate Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each the Underwriter thatas follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Final Prospectus Supplement, 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 or any of its subsidiaries, whether or not arising in the ordinary course of business, that would reasonably be expected to result in a 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 Change” or an “Adviser Material Adverse Effect,” where the context so requires).
(b) The Adviser and each of its subsidiaries has been duly organized and is a corporation duly incorporated and validly existing corporation in good standing under the laws of the State of Delaware, with full and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the General Disclosure Package and the Final Prospectus (Supplement and any amendment or supplement to either 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; and each of them), the Adviser and its subsidiaries is duly registered and qualified to conduct its 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 place where the nature leasing of its properties property or the conduct of its business requires such registration or qualificationbusiness, except where the failure to so register qualify or be in good standing would not otherwise reasonably be expected to qualify does not have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(bc) 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 for the Trust Company as contemplated by the General Disclosure Package and the Final Prospectus (or any amendment or supplement thereto)Supplement. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should could reasonably be expected to have a material adverse lead to any proceeding, which might adversely affect on the registration of the Adviser with the Commission.
(cd) There are is no legal action, suit or proceeding or, to the knowledge of the Adviser or any of its subsidiaries, inquiry or investigation before or brought by any court or governmental proceedings pending agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened threatened, against or affecting the Adviser, that are Adviser which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which would reasonably be expected to result in an Adviser 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 is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement or the General Disclosure Package and/or the Final Prospectus (or any amendment or supplement Supplement, including ordinary routine litigation incidental to either of them) but are their business, would not described as required or that should reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(de) Neither the execution, delivery or performance Adviser nor any of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser its subsidiaries is in violation of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the its certificate of incorporation or bylawsin default in the performance or observance of any obligation, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material 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 is a party or by which the Adviser it or any of its properties them may be bound, or materially violates to which any of the property or will materially violate assets of the Adviser is subject (collectively, the “Adviser Agreements and Instruments”), or in violation of any material law, statute, lawrule, regulation or regulation, judgment, injunction, order or decree applicable except for such violations or defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect; 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 Shares and the use of the proceeds from the sale of the Shares as described in the Registration Statement, the General Disclosure Package and the Final Prospectus Supplement under the caption “Use of Proceeds”) and compliance by the Adviser with their respective obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or any without the giving of its properties notice or will passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement Adviser Agreements except for such violations or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should defaults that would not reasonably be expected to have a material adverse effect on result in an Adviser Material Adverse Effect, nor will such action result in any violation of the ability provisions of 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 any of its assets, properties or operations except for such violations that would not reasonably be expected to perform its obligations under this result in an Adviser Material Adverse Effect.
(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. This Agreement, the Investment Advisory Agreement. The Agreement and the Administration Agreement are valid and binding obligations of the Adviser is not or the Administrator, as 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 order of proceeding therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and agency is necessary or required for the performance by the Adviser of its obligations underhereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement Agreement, (including the use of the proceeds from the sale of the Shares as described in the Registration Statement, the General Disclosure Package and the Advisory Agreement Final Prospectus Supplement under the caption “Use of Proceeds”), except such as have been duly and validly authorized by already obtained under the Adviser, and this Agreement Act and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law1940 Act.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(gh) The description of the Adviser contained in the Registration Statement Statement, the General Disclosure Package and the Final Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will Supplement does not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under in which they were made) , not misleading.
(hi) The Advisory Agreement complies Adviser possesses such licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it (“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; the Adviser is in compliance with the terms and conditions of all material respects with such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in an Adviser Material Adverse Effect; all applicable provisions of the 1940 ActGovernmental Licenses are valid and in full force and effect, except when the 1940 Act Rules invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and Regulationseffect would not, singly or in the Advisers Act aggregate, result in an Adviser Material Adverse Effect; and the Advisers Act Rules and Regulations.
(i) Except as disclosed Adviser has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the Registration Statement and aggregate, if the Prospectus (subject of an unfavorable decision, ruling or any amendment or supplement to either of them)finding, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should would reasonably be expected to have a material adverse effect on the ability of the result in an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(j) The Adviser has is not 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 permitsexecutive or key employee is subject to any non-compete, licensesnondisclosure, franchises and authorizations confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of governmental the Company or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment Adviser except where such termination or supplement thereto), except to the extent that the failure to so have should violation would not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Gladstone Capital Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should has or would reasonably be expected to have a material adverse affect Material Adverse Effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should could reasonably be expected to result in any Material Adverse Effect on the Adviser or that could reasonably be expected to have a material material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or under the Advisory Agreement, the Corporate Finance Services and Consulting Agreement or the Underwriter Participation Agreement (collectively, the "Adviser Agreements").
(d) Neither the execution, delivery or performance of this Agreement Agreement, or any of the Advisory Agreement Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any material consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance Lien upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Aii) for such conflict, breach, default, violation or (B) as should lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial, which order, either alone or in the aggregate, has or would not reasonably be expected to have a Material Adverse Effect on the Adviser or on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming the due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited (based upon considerations of public policy) by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (whether enforcement is considered in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and Agreement, or each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and such description and the statements attributable to the Adviser did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (that has or any amendment or supplement to either of them), there has not occurred any event which should would reasonably be expected to have have, either alone or in the aggregate, a material Material Adverse Effect on the Adviser or a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or under any of the Advisory AgreementAdviser Agreements.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the lack of, revocation, termination or impairment of the Adviser's rights under such permits should not has or would reasonably be expected to have have, either alone or in the aggregate, a material Material Adverse Effect on the Adviser or a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or under any of the Advisory AgreementAdviser Agreements.
(j) This Agreement and each of the Adviser Agreements do not violate in any material respects any applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Capital Claymore Man Dur Inv GRD Muni Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas of the date of this Underwriting Agreement, as of the Applicable Time, as of the Firm Shares Closing Time and as of each Additional Shares Closing Time, if any, as follows:
(a) The Adviser (i) has been duly organized and is a corporation duly incorporated and validly existing and in good standing as a corporation under the laws of the State of Delaware, with ; (ii) has full corporate power and authority to own, lease and operate its properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus Prospectus; (and any amendment or supplement to either of them), and iii) is duly registered licensed and qualified to conduct its do business and is in good standing in each jurisdiction where it owns or place where the nature of its properties leases property or in which the conduct of its business or other activity requires such registration or qualification; it is required to be so qualified, except where to the extent that failure to be so register qualified or to qualify does be in good standing would not have a material adverse effect on the Adviser’s ability of to provide services to the Adviser to perform its obligations under this Agreement and Fund as contemplated by the Advisory Agreement; (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus except those the absence of which, either individually or in the aggregate, would not have a material adverse effect on the Adviser; and (v) has made all necessary filings in respect of its Licenses and Permits required under any applicable federal, state, local or foreign law, regulation or rule to maintain its business as an investment adviser.
(b) The Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act and is (ii) not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Investment Company Act Rules and Regulations from acting under the Advisory Agreement as an investment adviser for the Trust Fund as contemplated by the Investment Advisory Agreement, the Registration Statement, the Pricing Prospectus (and the Prospectus and no order or any amendment suspension or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the revocation of such registration of the Adviser with the Commission.
(c) There are no legal has been issued or governmental proceedings pending therefor initiated or, to the knowledge of the Adviser, threatened against by the Commission.
(c) The Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Subscription Agreement, the Administration Agreement, the Consulting and Fund Development Agreement and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Adviser, that are required to be described (ii) the Adviser Agreements do not violate in any material respect any of the Registration Statement applicable provisions of the Investment Company Act or the Prospectus Advisers Act and (or any amendment or supplement to either of themiii) but are not described as required or that should reasonably be expected to have a material adverse effect on assuming due authorization, execution and delivery by the ability other parties thereto, each of the Adviser Agreements constitutes a legal, valid and binding obligation of the Adviser enforceable in accordance with its terms, subject to perform its the qualification that the enforceability of the Adviser’s obligations under this Agreement thereunder may be limited by U.S. bankruptcy, insolvency and the Advisory Agreementsimilar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law), except as enforcement of rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither None of (i) the execution, delivery and performance by the Adviser of the Adviser Agreements, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Underwriting Agreement, the Registration Statement, the Pricing Prospectus, the Prospectus or any of the Adviser Agreements and (iii) the performance by the Adviser of its obligations under any of the Adviser Agreements or performance of this Agreement or the Advisory Agreement by the Adviser, nor the and consummation by the Adviser of the other transactions contemplated hereby or thereby by the Adviser Agreements (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts with or will conflict with with, results in or will result in a breach or violation of, or constitutes or will constitute a breach default or an event of or a default under, or result in the certificate creation or imposition of incorporation any lien, charge or bylaws, encumbrance upon any properties or other organizational documents, assets of the Adviser under the limited liability company operating agreement, bylaws or (B) conflicts similar organizational documents of the Adviser, or will conflict with or constitutes or will constitute a material breach the terms and provisions of or a default under, any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) subject or (B) as should not reasonably be expected results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Adviser or having jurisdiction over the Adviser’s properties; which conflicts, breaches, violations or defaults under (A) and (B), either individually or in the aggregate, would have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agencyAdviser.
(e) The execution Investment Advisory Agreement is in full force and delivery effect and neither the Fund nor the Investment Adviser are 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 under such agreements.
(f) No consent, approval, authorization, notification or order of, and or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, organization or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Adviser for the consummation by the Adviser of the transactions to be performed by the Adviser or the performance by the Adviser of its obligations under, this Agreement all the terms and the Advisory Agreement have been duly and validly authorized provisions to be performed by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, or on behalf of it in each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Prospectus, except such as (i) have been obtained and such as may be required (and shall be obtained prior to commencement of the transaction contemplated by this Underwriting Agreement) under the Securities Act, the Exchange Act, the Investment Company Act or any amendment the Advisers Act, and (ii) may be required by the NASDAQ, FINRA or supplement thereto) under state securities or “blue sky” laws, in connection with the purchase and under distribution of the Shares by the Underwriters pursuant to this Agreement and the Advisory Underwriting Agreement.
(g) The description of the Adviser and its business and the statements attributed to the Adviser in the Registration Statement Statement, the Pricing Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions requirements of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations Securities Act and the Advisers Investment Company Act Rules and Regulations and did not and will do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Thornburg Income Builder Opportunities Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and,
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The Adviser is a corporation has been duly incorporated organized and validly existing exists as a Delaware limited liability company, and in good standing under the laws of the State of Delaware, with full corporate power power, right and authority to own, lease and operate its properties and to conduct its business business, including, performing its obligations under the Management Agreement and the Administration Agreement. Subsequent to the respective dates as described of which information is given in the Registration Statement and the Prospectus, except as disclosed in the Registration Statement and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (i) the business, condition (financial or otherwise), or regulatory status of the Adviser that could reasonably be expected to prevent the Adviser from carrying out its obligations under this Agreement, the Management Agreement or the Administration Agreement, or (ii) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement or the Prospectus (collectively, an “Adviser MAC”). The Adviser has full right, power and any amendment or supplement authority to either of them)execute and deliver this Agreement, the Management Agreement and the Administration Agreement. The Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have a material adverse effect on in the ability of the aggregate, constitute an Adviser to perform its obligations under this Agreement and the Advisory AgreementMAC.
(b) 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 Investment Company Act or the 1940 Act Rules applicable rules and Regulations regulations thereunder from acting under the Advisory Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, and the Company Agreements to which it is a party.
(d) There are no actions, suits, claims, investigations or proceedings pending or, to the knowledge of the Adviser, threatened to which the Adviser or any of its officers, partners or members are or would be a party or of which any of their 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 result in a judgment, decree or order either (A) constituting, individually or in the aggregate, an Adviser MAC or (B) preventing the consummation of the transactions contemplated hereby.
(e) The Adviser is not in breach or violation of, or in default (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 right to require the repurchase, redemption or repayment of all or part of such indebtedness) under (i) its limited liability company operating agreement or other organizational documents, or (ii) the Management Agreement, the Sub-advisory Agreement or the Administration Agreement, 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 which the Adviser is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not constitute an Adviser MAC.
(f) This Agreement, the Management Agreement and the Advisory Administration Agreement have been duly and validly authorized, executed and delivered by the Adviser. The Management Agreement, the Sub-advisory Agreement and the Administration Agreement constitute valid and legally binding agreements of the Adviser, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(g) The description of the Adviser and the statements attributable to the Adviser contained in the Registration Statement Prospectus are true, accurate and the Prospectus (and any amendment or supplement to either of them) complete in all material respects, complied and comply in all material respects with the provisions of the 1933 Securities Act, the 1940 Investment Company Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules rules and Regulations regulations under such Acts, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in all material respects with all order to conduct its business, except where the failure to obtain such Consents would not constitute an Adviser MAC; the Adviser is not in violation of, or in default under, nor has the Adviser 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 provisions of to the 1940 ActAdvise, except where such revocation or modification would not, individually or in the 1940 Act Rules and Regulationsaggregate, the Advisers Act and the Advisers Act Rules and Regulationsconstitute an Adviser MAC.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability None of the Adviser to perform or any of its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser respective partners, officers, affiliates or controlling persons has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and the Units.
(j) The Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company or the Adviser, as applicable, plans or plan to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who except where such termination or violation would not constitute an Adviser MAC.
(k) The Adviser is using its best efforts to develop and implement a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement are not underwriters executed in accordance with its management’s general or dealers participating specific authorization; and (ii) access to the Company’s assets is permitted only in the offering of the Sharesaccordance with its management’s general or specific authorization.
(l) Each Prepricing Prospectus complied when filed with The Adviser 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 Commission in all material respects with the provisions Administration Agreement are recorded as necessary to permit preparation of the 1933 ActCompany’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.
(m) The Adviser maintains insurance in such amounts and covering such risks as the Adviser reasonably considers adequate for the conduct of its business and the value of its properties, all of which insurance is in full force and effect, except where the failure to maintain such insurance could not reasonably be expected to be an Adviser MAC. There are no material claims by the Adviser under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. Subject to changes in pricing in the insurance industry generally (as to which the Adviser makes no representation or warranty), the 1940 Act Adviser has no reason to believe that it will not be able to renew its existing insurance as and when such coverage expires or will not be able to obtain replacement insurance adequate for the conduct of the business and the Rules and Regulations. The Commission has value of its properties at a cost that could not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusreasonably be expected to cause an Adviser MAC.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing in good standing as a limited liability company under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign limited liability company and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument Fund Agreements to which it is a party or for the Fund as contemplated by which it may be bound or the Prospectus.
(c) The Adviser has full power and authority to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement. The Adviser Fund Agreements to which it is not subject to any order of any court or of any arbitratora party, governmental authority or administrative agency.
(e) The the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement Fund Agreements to which it is a party, have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement Fund Agreements to which it is a party have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory AgreementFund Agreements to which it is a party.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this Agreement the Fund Agreements to which it is a party, or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Advisory AgreementRegistration 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 Act, the 1940 Act or the Rules and Regulations.
(jg) Since the date as of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) 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 as described in the Prospectus.
(h) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(i) This Agreement and the Fund Agreements to which the Adviser is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) 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, in the Fund Agreements by the Adviser which is a party thereto, except where such as have been made or obtained under the revocation, termination or impairment Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on Securities by the ability of Underwriters in the Adviser to perform its obligations under manner contemplated herein and in the Advisory AgreementProspectus.
(k) Except as stated in Neither the execution, delivery or performance of this Agreement and or any of the Fund Agreements to which the Adviser is a party nor the consummation by the Fund or the Adviser of the transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of certificate of formation or limited liability operating agreement, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the Prospectus creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(and in any amendment or supplement thereto), the l) The Adviser has not taken, taken and nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(m) In the event that the Fund or the Adviser who makes available any promotional materials intended for use only by qualified 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 not underwriters reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or dealers participating counsel for the Underwriters in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Evergreen Utilities & High Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Initial Purchasers as follows:
(a) The Adviser is a corporation limited liability company duly incorporated formed and validly existing in good standing under the laws of the State of Delaware, with full corporate 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 Disclosure Package and the Prospectus (and any amendment or supplement to either of them)Final Offering Memorandum, and is duly registered and qualified to conduct its do business as a foreign limited liability company and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not in the aggregate, have a material adverse effect on (i) the ability performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) the condition (financial or otherwise), earnings, or business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business (clauses (i) and (ii) together or individually with respect to the Adviser, an “Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect”).
(b) 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 Advisory Agreement for as investment adviser to the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Disclosure Package and the Final Offering Memorandum. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, The Adviser has full limited liability company power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement.
(d) Neither ; the execution, execution and delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject Agreement to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery ofthe Adviser, and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Agreement, have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement to the Adviser have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery hereof by the other parties theretoyou, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principles of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources and appropriately skilled personnel available to it necessary for the performance of its services and obligations as contemplated described in the Prospectus (or any amendment or supplement thereto) Disclosure Package and the Final Offering Memorandum and as contemplated under this Agreement and the Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser in the Registration Statement Disclosure Package and the Prospectus (and any amendment or supplement to either of them) Final Offering Memorandum complied and comply in all material respects with the provisions of the 1933 Act, Advisers Act and 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading. The Adviser is not aware that any executive, key employee or significant group of employees of the Adviser plans to terminate employment with the Company or the Adviser.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should threatened that would reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (Disclosure Package and any amendment or supplement thereto)the Final Offering Memorandum, except to the extent that where the failure to so obtain such licenses, permits or authorizations would not have should not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement; the Material Adverse Effect. The Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(h) Neither the execution, except where delivery or performance of this Agreement by the revocation, termination Adviser or impairment of the Advisory Agreement nor the consummation by the Adviser of the transactions herein contemplated or by the Adviser of the transactions therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of formation or limited liability company operating agreement of the Adviser's rights under , (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound, except for such permits should conflicts that would not reasonably be expected result in an Adviser Material Adverse Effect or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to have a the Adviser or any of its properties or, other than pursuant to the terms of Section 5(h) hereof, will result in the creation or imposition of any material adverse effect on the ability lien, charge or encumbrance upon any property or assets of the Adviser pursuant to perform its obligations the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject, except to the extent for such violations, liens, charges or encumbrances that would not result in an Adviser Material Adverse Effect, it being understood and agreed that for purposes of this representation and warranty, the transactions contemplated under the Advisory AgreementAgreement do not include any prospective investment transactions generally authorized therein.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(j) The Adviser who are is not underwriters aware that (i) any of the Adviser’s executives, key employees or dealers participating significant group of employees plans to terminate employment with the Adviser or (ii) any such executive or key employee is subject to any noncompete, 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 constitute an Adviser Material Adverse Effect. Any certificate signed by any officer of the Adviser and delivered to the Initial Purchasers or counsel for the Initial Purchasers in connection with the offering of the SharesSecurities shall be deemed a representation and warranty by the Adviser, as to matters covered therein, to the Initial Purchasers.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (Business Development Corp of America)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatthe Subadviser as follows:
(a) The execution, delivery, and performance by the Adviser of this Agreement are within its powers and have been duly authorized by all necessary action, and no action or filing with any governmental body, agency, or official is required for the execution, delivery, and performance of this Agreement, and the execution, delivery, and performance by the Adviser of this Agreement do not contravene or constitute a default under any provision of applicable law, rule, or regulation, the Adviser’s governing instruments or any agreement, judgment, injunction, order, decree, or other instrument binding upon the Adviser.
(b) The services to be provided by the Subadviser are within the scope of the services and investments authorized by the Advisory Agreement and the governing instruments of, and/or laws and regulations applicable to, the Adviser and that, subject to the terms of this Agreement, the Adviser is a corporation duly incorporated authorized to enter into this Agreement. The Adviser shall deliver to the Subadviser evidence of such authority as the Subadviser may reasonably require.
(c) If, at any time during the term of this Agreement, the Adviser discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and validly existing warranties in good standing this Agreement inaccurate or incomplete in any material respect, the Adviser will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto.
(d) The Adviser: (i) is registered as an investment adviser under the laws Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement or the Advisory Agreement; (iii) has met, and will continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory organization, necessary to be met in order to perform the State of Delaware, with full corporate power services contemplated by this Agreement and the Advisory Agreement; and (iv) has the authority to own, lease enter into and operate its properties and to conduct its business as described in perform the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under services contemplated by this Agreement and the Advisory Agreement.
(be) The Neither the Adviser nor any officer, director, partner, or employee of the Adviser is duly registered with subject to any event set forth in Section 9(a) of the Commission 1940 Act that would disqualify the Adviser from acting as an investment adviser to an investment company under the Advisers Act and is not prohibited by 1940 Act. The Adviser will promptly notify the Advisers Act, Subadviser of the Advisers Act Rules and Regulations, occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or the 1940 Act Rules and Regulations from acting under the Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at lawotherwise.
(f) The Adviser has adopted and implemented a written code of ethics reasonably designed to comply with the financial resources necessary for requirements of Rule 17j-1 under the performance 1940 Act and written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to prevent violations of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement Advisers Act and the Advisory Agreementrules thereunder by the Adviser, its officers and employees. Upon reasonable notice to and reasonable request, the Adviser shall provide the Subadviser with access to the records relating to such policies and procedures as they relate to the Subadvised Portfolio.
(g) The description Adviser is either registered with the CFTC as a “commodity pool operator” and a member in good standing of the Adviser in the Registration Statement and the Prospectus (and any amendment National Futures Association or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 is relying on an untrue statement of applicable exemption or exclusion from registration as a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleadingcommodity pool operator.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Adviser represents that each Fund is a “qualified eligible person” as that term is defined under CFTC Rule 4.7 and consents on behalf of each Fund to such Fund being treated as an exempt account under CFTC Rule 4.7(c)(1). The Adviser also represents that, as of the 1940 Actdate of this Agreement, it is registered as a “commodity pool operator” under the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsCEA.
(i) Except The Adviser is a corporation duly organized and validly existing under the laws of Delaware with the power to carry on its business as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information it is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementnow being conducted.
(j) The Adviser This Agreement has such permitsbeen properly approved according to applicable laws rules and regulations by the shareholder(s) of each Fund, licenses, franchises the Board and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability those directors of the Adviser Corporation who are not parties to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware interested persons of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Sharesparty.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser CAC represents and warrants to each Underwriter thatthe Underwriters as follows:
(a) The Adviser CAC is a corporation an insurance company duly incorporated organized and validly existing in good standing authorized to transact its appropriate business under the laws of the State of DelawareIllinois, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, business prospects, properties, net assets or results of operations of CAC or on the ability of the Adviser CAC to perform its obligations under this Agreement, the Purchase Agreement and or the Advisory AgreementAgreement (an "Adviser Material Adverse Effect").
(b) The Adviser CAC 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 Advisory Agreement for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist exist, to the best knowledge of the Adviser, after reasonable investigation, any proceeding or any facts or circumstances the existence of which could lead to any proceeding which should reasonably be expected to have a material adverse might adversely affect on the registration of the Adviser CAC with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the AdviserCAC, threatened against the AdviserCAC, or to which CAC or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change in the condition (financial or other), business, business prospects, properties, net assets or results of operations of CAC or on the ability of the Adviser CAC to perform its obligations under this Agreement, the Purchase Agreement and or the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement, the Purchase Agreement or the Advisory Agreement by the AdviserCAC, nor the consummation by the Adviser CAC of the transactions contemplated hereby or thereby (A) requires the Adviser CAC to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, under the certificate Articles of incorporation or bylawsIncorporation, or other organizational documents, of CAC, except where the failure to obtain consents, approvals, authorizations, orders, registrations or filings does not have an Adviser Material Adverse Effect or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser CAC is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser CAC or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser CAC pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of CAC is subject that would individually or in the aggregate have an Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementMaterial Adverse Effect. The Adviser CAC is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser CAC of its obligations under, this Agreement, the Purchase Agreement and the Advisory Agreement have been duly and validly authorized by the AdviserCAC, and this Agreement, the Purchase Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser CAC and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the AdviserCAC, enforceable against the Adviser CAC in accordance with its terms, terms except as rights to indemnity and contribution hereunder or thereunder may be limited by federal or state securities laws, laws or principles of public policy and subject to the qualification that the enforceability of the TrustCAC's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser CAC has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Purchase Agreement and the Advisory Agreement.
(g) The description of the Adviser CAC in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), CAC has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to CAC or the Fund and that is required to be disclosed in the Registration Statement or the Prospectus and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, business prospects, properties, net assets or results of operations of CAC, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser CAC to perform its obligations under this Agreement, the Purchase Agreement and or the Advisory Agreement.
(ji) The Adviser (i) CAC has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser (ii) CAC has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser CAC under any such permit; and (iii), except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to CAC, except where the revocationfailures of (i), termination (ii) or impairment of (iii) to be accurate would not, individually or in the Adviser's rights under such permits should not reasonably be expected to aggregate, have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser CAC has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, and the Adviser CAC is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesCAC.
(lk) Each Prepricing Prospectus complied when filed with In the Commission in all material respects with event that the provisions Fund or CAC makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of the 1933 Actan Internet web site or similar electronic means, the 1940 Act CAC will install and the Rules maintain pre-qualification and Regulations. The Commission has not issued any order preventing password-protection or suspending the use of any Prepricing Prospectus or the Prospectussimilar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Investment Advisory Agreement for the Trust Fund, as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending or, The Adviser has full power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as enforcement of rights to indemnity and contribution hereunder may be limited by federal or state states securities laws, laws and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyanceinsolvency, insolvencyliquidation, receivership, conservatorship, reorganization, moratorium, moratorium and other similar laws relating to or affecting creditors' ’ rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law) and fair dealing.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Investment Advisory Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Advisory AgreementAdviser 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 Act, the 1940 Act or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“Adviser permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)Prospectus, except to the extent that the failure to so have should would not reasonably be expected to have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations obligation under this Agreement and the Investment Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such Adviser permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such Adviser permit, except where the revocation, termination or impairment of the Adviser's ’s rights under such Adviser permits should would not reasonably be expected to have a Material Adverse Effect on the ability of the Adviser to perform its obligation under this Agreement and the Investment Advisory Agreement.
(h) This Agreement and the Investment Advisory Agreement comply in all material adverse effect respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) 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, except such as have been made or obtained under the Act and the 1940 Act 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 Prospectus.
(j) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement, nor the consummation by the Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the Agreement and the Limited Liability Company Agreement or By-laws of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clauses (ii) or (iii) as would not have a Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement or the Investment Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed Xxxxx X. Xxxxxxx is the validly appointed Chief Investment Officer of the Adviser; Xx. Xxxxxxx has not given notice nor made known an intention to give notice of termination of his employment, and the Adviser knows of no reason why Xx. Xxxxxxx should be unable to serve as Chief Investment Officer to the Fund.
(m) In the event that the Fund or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the Commission in all material respects with the provisions offering of the 1933 ActSecurities shall be deemed a representation and warranty by the Adviser, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusas to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Gabelli Dividend & Income Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas of the date hereof, the Applicable Time, the time of purchase and each additional time of purchase, if any, and agrees with each Underwriter, as follows:
(a) The information regarding the Adviser in the Registration Statement, the Disclosure Package and the Prospectus is a corporation true and correct in all material respects.
(b) The Adviser has been duly incorporated formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with Texas and has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Disclosure Package and the Prospectus (and any amendment or supplement to either of them), enter into and perform its obligations under this Agreement; and the Adviser is duly registered and qualified as a foreign limited liability company to conduct its transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or place where the nature leasing of its properties property or the conduct of its business requires such registration or qualificationbusiness, except where the failure so to so register qualify or to qualify does not have be in good standing would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on in the ability condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Adviser to perform and its obligations under this Agreement and subsidiaries considered as one enterprise, whether or not arising in the Advisory Agreement.
ordinary course of business (b) The an “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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement theretoMaterial Adverse Effect”). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending orThis Agreement has been duly authorized, to the knowledge of executed and delivered by the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) The Services Agreement has been duly authorized by the Adviser and constitutes a valid and binding agreement of the Adviser enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting the enforceability of creditors’ rights and general principles of equity.
(e) Except as described in the Registration Statement, the Disclosure Package and the Prospectus, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, there has been no Adviser Material Adverse Effect.
(f) Neither the Adviser nor any of its subsidiaries is (i) in violation of its organizational 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 any of its subsidiaries 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 any of its subsidiaries is subject (collectively, “Adviser Agreements and Instruments”), except for such defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect; and the execution, delivery or and performance of this Agreement or and the Advisory Services Agreement by the Adviser, nor Adviser and the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires herein, therein and in the Registration Statement and compliance by the Adviser to obtain any consentwith its obligations hereunder and thereunder have been duly authorized by all necessary limited liability company action and do not and will not, approvalwhether with or without the giving of notice or passage of time or both, authorization conflict with or other order constitute a breach of, or registration default or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default Repayment Event (as defined below) under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of its subsidiaries pursuant to, the Adviser is subjectAgreements and Instruments (except for such conflicts, except in any case under clause (A) breaches, defaults or (B) as should Adviser Repayment Events or liens, charges or encumbrances that would not reasonably be expected to have a material adverse effect on the ability result in an Adviser Material Adverse Effect), nor will such action result in any violation of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case organizational documents of the ProspectusAdviser or any of its subsidiaries or any applicable law, in light statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the circumstances under Adviser or any of its subsidiaries or any of their assets, properties or operations. As used herein, a “Adviser Repayment Event” means any event or condition which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions gives the holder of the 1940 Actany note, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus debenture or other evidence of indebtedness (or any amendment person acting on such holder’s behalf) the right to require the repurchase, redemption or supplement to either repayment of them), subsequent to all or a portion of such indebtedness by the respective dates as of which such information is given in the Registration Statement and the Prospectus (Adviser or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementsubsidiaries.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each the Underwriter that:
(a) The Adviser is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(b) 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 Advisory Investment Management Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There To the best knowledge of the Adviser, after reasonable inquiry, there does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There To the best knowledge of the Adviser, after reasonable inquiry, there are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.to
(d) Neither To the best knowledge of the Adviser after reasonable inquiry, neither the execution, delivery or performance of this Agreement or the Advisory Investment Management Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default, would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) where such conflict, breach, default or (B) as should violation would not reasonably be expected to have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Management Agreement.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Investment Management Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(ig) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (Prospectus, the Adviser has not incurred any liability or obligation, direct or contingent, or entered into any amendment transaction, not in the ordinary course of business, that is material to the Adviser or supplement to either of them)the Trust, and there has not occurred been any event material adverse change, or any development involving or which should may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser, whether or not arising in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement.
(jh) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)Prospectus, except to such permits the extent that the failure to so have should lack of which would not reasonably be expected to have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser or on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Investment Management Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus, termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto)Prospectus, the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Kemper Strategic Municipal Income Trust)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State [ ] of Delaware[ ], with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does or would not have a material adverse effect Material Adverse Effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementAdviser.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected which, if determined adversely with respect to the Adviser, does or would have a material and adverse affect effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected that, if determined adversely with respect to the Adviser, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(d) Neither the execution, delivery or performance of this Agreement or any of the Advisory Agreement by the AdviserAdviser Agreements, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should does or would not reasonably be expected to have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial that would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(e) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, of and the performance by the Adviser of its obligations under, under this Agreement and the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, ; and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, and (assuming due and valid authorization, execution and delivery by the other parties hereto and thereto, ) this Agreement and each Adviser Agreement constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is considered sought in a proceeding in equity or at law).
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or any of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations Regulations; and such description and the statements attributable to the Adviser in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business that does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(i) The Advisory Adviser has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Adviser has fulfilled and performed all its obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and,
(iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Adviser; except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, as set forth in clauses (i), (ii) and (iii), either individually or in the aggregate, does or would have a Material Adverse Effect on the Adviser or does or would have a material and adverse effect on the ability of the Adviser to perform its obligations under this Agreement complies or any of the Adviser Agreements.
(j) Each of the Adviser Agreements comply in all material respects with all the applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might reasonably be expected to could cause or result in or which will constitute stabilization or manipulation of the price of any the Shares in violation of federal securities issued by laws and, to the Trust to facilitate the sale or resale of the SharesAdviser's knowledge, and the Adviser is not aware of any no such action taken has been, or to be will be, taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), ) and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does would not have a material adverse effect Material Adverse Effect on the ability of Adviser or the Adviser to perform its obligations under this Agreement and the Advisory AgreementFund.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Investment Management Agreement for the Trust Fund as contemplated by the Registration Statement or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which should reasonably be expected to could have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should would reasonably be expected to result in any Material Adverse Effect on the Adviser or that would be reasonably expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and or the Advisory Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement or the Advisory Subscription Agreement by for Common Shares of the AdviserFund dated November 3, 2003 (the "Subscription Agreement," this Agreement, the Investment Management Agreement, the Expense Reimbursement Agreement and the Subscription Agreement being referred to herein as the "Adviser Agreements"), nor the consummation by the Adviser of the transactions contemplated hereby or thereby (Ai) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing which has not yet been made or obtained with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser (except compliance with securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, documents of the Adviser or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (Ai) or (Bii) as should would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and any of the Advisory AgreementAdviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental authority body, agency or administrative agencyofficial.
(e) The Adviser has full power and authority to enter into each of the Adviser Agreements, the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Advisory Agreement Adviser Agreements have been duly and validly authorized by the Adviser, Adviser and this Agreement and each of the Advisory Agreement Adviser Agreements have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the TrustAdviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and each of the Advisory AgreementAdviser Agreements.
(g) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and or the Prospectus (and or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions Since the date as of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed which information is given in the Registration Statement and or the Prospectus (or any amendment or supplement to either of them), subsequent except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Adviser which are material to the respective dates as of which such information is given Adviser other than those in the Registration Statement and ordinary course of its business as described in the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory AgreementProspectus.
(ji) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") permits as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability .
(j) None of the Adviser to perform its obligations under Agreements violate any applicable provisions of the Advisory Agreement1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Adviser has not taken, nor taken and will it not take, directly or indirectly, any action designed to or which might would reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Shares or of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Municipal High Income Opportunity Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation limited partnership duly incorporated organized and validly existing in good standing under the laws of the State of DelawareCalifornia, with full corporate partnership power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign limited partnership and is in good standing in under the laws of each jurisdiction or place where which requires such qualification. KAEFTX, L.P., the nature subsidiary of the Adviser, is a limited partnership duly organized and validly existing in good standing under the laws of the State of Texas, with full partnership power and authority to own, lease and operate its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreementassets.
(b) 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 Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending or, The Adviser has full partnership power and authority to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under enter into this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, ; and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws or principals of public policy and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 ActActs, the Advisers Act, the Rules and Regulations 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this Agreement and the Advisory AgreementAgreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Adviser 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 Acts or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where .
(h) This Agreement and the revocation, termination or impairment Advisory Agreement comply in all material respects with all applicable provisions of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on 1940 Act, the ability 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or governmental agency or body or supervisory authority is required in connection with the Adviser to perform its obligations under transactions contemplated herein or in the Advisory Agreement.
, other than (ka) Except as stated those that have been made or obtained under the Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus Prospectus, (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc., and (d) such other approvals as have been obtained.
(j) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement, nor the consummation by the Company or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of limited partnership or agreement of limited partnership of the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any amendment material lien, charge or supplement thereto), encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(k) The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed In the event that the Company or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the Commission in all material respects with the provisions offering of the 1933 ActSecurities shall be deemed a representation and warranty by the Adviser, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusas to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Kayne Anderson MLP Investment CO)
Representations and Warranties of the Adviser. The Adviser represents and warrants to and agrees with each Underwriter of the Underwriters that:
(a) The Adviser has been duly organized, is a corporation duly incorporated and validly existing as a corporation, in good standing under the laws of the State jurisdiction of Delawareits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its transact business and is in good standing in each jurisdiction or place where the nature of its properties or in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so register qualified or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
be in good standing (bi) 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 Advisory Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should could not reasonably be expected to have a material adverse effect on the ability Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business, operations, properties, management or personnel of the Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”).
(b) The 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 Management Agreement as an investment adviser to the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or threatened by the Commission.
(c) Each of this Agreement, the Investment Management Agreement, the Structuring and Syndication Fee Agreement between the Adviser and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Adviser and [ ] (the “[ ] Fee Agreement”), and [OTHER AGREEMENTS EXECUTED BY THE ADVISER] (this Agreement, the Investment Management Agreement, the Xxxxxx Xxxxxxx Fee Agreement, the [ ] Fee Agreement and [OTHER AGREEMENTS EXECUTED BY THE ADVISER] are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Adviser and complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Adviser to perform Agreements is a valid and binding agreement of the Adviser, enforceable in accordance with its obligations under this Agreement and the Advisory Agreement. The Adviser is not terms, subject to any order applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by equitable principles of any court or of any arbitrator, governmental authority or administrative agencygeneral applicability.
(ed) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by Adviser Agreements will not contravene any provision of applicable law or its articles of incorporation or by-laws, or any agreement or other instrument binding upon the Adviser that is material to the Adviser, and this Agreement and or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Advisory Agreement have been duly executed and delivered Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Adviser andof its obligations under the Adviser Agreements, assuming due authorization, execution and delivery except such as have been obtained as required by the other parties theretoActs, each constitutes the valid Advisers Act, the Exchange Act or the applicable Rules and legally binding agreement Regulations, or by the securities or Blue Sky laws of the Adviser, enforceable against various states and foreign jurisdictions in connection with the offer and sale of the Shares.
(e) There are no legal or governmental proceedings pending or threatened to which the Adviser is a party or to which any of the properties of the Adviser is subject (iii) other than proceedings accurately described in accordance with all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or on the power or ability of such Adviser to perform its termsobligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement, except the Time of Sale Prospectus and the Prospectus or (iv) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject exhibits to the qualification Registration Statement that the enforceability of the Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to are not described or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawfiled as required.
(f) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits 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 Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Time of Sale Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory AgreementProspectus and by the Adviser Agreements.
(gh) The Investment Management Agreement is in full force and effect and neither the Fund nor the Adviser 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 under such document.
(i) All information furnished by the Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Adviser in Adviser, does not, and on the Registration Statement and the Prospectus (and Closing Date will not, contain any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) such information not misleading.
(hj) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the Adviser from that set forth in the Time of Sale 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 Time of Sale Prospectus.
(k) The Advisory Adviser maintains a system of internal controls designed to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement complies are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(i) There has been no security breach or incident, unauthorized access or disclosure, or other compromise relating to the Adviser’s information technology and computer systems, data and databases used by the Fund (collectively, “IT Systems and Data”) except in each case as would not reasonably expected to, individually or in the aggregate, have a Material Adverse Effect, and (ii) the Adviser has implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of its IT Systems and Data reasonably consistent in all material respects with industry standards and practices, or as required by applicable regulatory standards. The Adviser is presently in material compliance with all applicable provisions laws and regulations relating to the privacy and security of its IT Systems and Data and to the 1940 Actprotection of such IT Systems and Data from unauthorized use, the 1940 Act Rules and Regulationsaccess, the Advisers Act and the Advisers Act Rules and Regulationsmisappropriation or modification.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability None of the Adviser to perform or its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permitssubsidiaries or affiliates, licensesor any director, franchises and authorizations of governmental officer, or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)employee thereof, except or, to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability Adviser’s knowledge, any agent or representative of the Adviser or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowspay, or after notice authorization or lapse of time would allow, revocation or termination thereof or results in any other material impairment approval of the rights payment, giving or receipt of the Adviser under any such permitmoney, except where the revocationproperty, termination gifts or impairment anything else of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it takevalue, directly or indirectly, to any action Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) neither the Adviser nor its subsidiaries will use, directly or which might reasonably be expected to cause or result in stabilization or manipulation indirectly, the proceeds of the price offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates applicable anti-corruption laws.
(n) The operations of the Adviser who and its subsidiaries are not underwriters and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or dealers proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser, threatened.
(i) None of the Adviser, any of its subsidiaries, or any director, officer, or employee thereof, or, to the Adviser’s knowledge, any agent, affiliate or representative of the Adviser or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Adviser will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Adviser Person: (A) to fund or facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Adviser Person (including any Adviser Person participating in the offering of the Sharesoffering, whether as underwriter, advisor, investor or otherwise).
(liii) Each Prepricing Prospectus complied when filed The Adviser and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Commission in all material respects with the provisions time of the 1933 Act, dealing or transaction is or was the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use subject of any Prepricing Prospectus or the ProspectusSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Cohen & Steers Tax-Advantaged Preferred Securities & Income Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas 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:
(ai) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware corporation and in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the General Disclosure Package and the Prospectus (and any amendment or supplement to either of them), execute and deliver this Agreement; the Adviser had full power and authority to execute and deliver the Investment Advisory Agreement ; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register or qualified and in good standing would not, reasonably be expected to qualify does not have a material adverse effect on the ability business, financial condition, capitalization, or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Advisory Agreement and the Advisory Agreement.(an “Adviser Material Adverse Effect”);
(bii) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations promulgated thereunder from acting under the Investment Advisory Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)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 should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(ciii) There there are no legal or governmental actions, suits, claims, proceedings or, to the Adviser’s knowledge, investigations pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser may be reasonably expected to become subject at law or in equity, that are required 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 described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should Adviser reasonably be expected to have a material adverse effect on the ability of an Adviser Material Adverse Effect;
(iv) the Adviser is not (A) in violation of its certificate of incorporation or bylaws or (B) in default of (nor has any event occurred which with notice, lapse of time or both would constitute such default) 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 perform its obligations under which the Adviser is a party, or (C) in contravention of any law, regulation or rule or any decree, judgment or order applicable to the Adviser, except, with respect to clause (B) and (C), to the extent that any such breach, violation or contravention would not reasonably be expected to have an Adviser Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires and in the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing withRegistration Statement, the Commission, General Disclosure Package and the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over Prospectus (including the Adviser or conflicts or issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) will conflict with or constitutes or will constitute a breach of or a default under, not (i) violate the certificate of incorporation or bylawsof the Adviser, or other organizational documents(ii) result in any default or the occurrence of any event which with notice, lapse of the Adviser time or (B) conflicts or will conflict with or constitutes or will both would constitute a material breach such default of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or (iii) contravene any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lienAdviser, charge or encumbrance upon any property or assets of the Adviser pursuant except, with respect to clause (ii) and (iii), to the terms of extent that any agreement such breach, violation or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should contravention would not reasonably be expected to have a material adverse effect on an Adviser Material Adverse Effect; and the ability execution, delivery and performance of this Agreement, the Investment Advisory 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) the certificate of incorporation of the Adviser, (ii) other organizational documents of the Adviser, (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 is a party or (iv) any law, regulation, rule or any decree, judgment or order applicable to perform its obligations under the Adviser, 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;
(v) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution Adviser; this Agreement and delivery by the other parties thereto, each constitutes the Investment Advisory Agreement constitute valid and legally binding agreement agreements of the Adviser, enforceable against provided, however, that the Adviser in accordance makes no representations or warranties with its terms, except as respect to the validity or enforceability of any provision hereunder or thereunder relating to rights to indemnity and and/or contribution hereunder or enforceability of any obligations that may be limited by federal or state securities laws, and subject to the qualification that Enforceability Exceptions;
(vi) the enforceability descriptions of the Trust's obligations hereunder Adviser contained in the Registration Statement, the General Disclosure Package and thereunder may be limited by bankruptcythe Prospectus are true, fraudulent conveyance, insolvency, reorganization, moratorium, accurate and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered complete in a proceeding in equity or at law.all material respects;
(fvii) The the Adviser has the 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 (or any amendment or supplement thereto) and under this Agreement and with respect to the Investment Advisory Agreement.;
(gviii) The description subsequent to the date of the Adviser most recent financial statements contained in the Registration Statement Statement, General Disclosure Package and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred been any event which should reasonably be expected to have a material adverse effect on change, in the ability business, financial condition, capitalization, prospects or regulatory status of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Adviser;
(jix) The the Adviser has such permitsall Consents and has made all necessary filings required under any federal, licensesstate, franchises local or foreign law, regulation or rule and authorizations of governmental or regulatory authorities ("permits") as are has obtained all necessary to own its properties and Consents from other persons, in order to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto)business, except to the extent that where the failure to so have should obtain such Consents or make such filings would not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory AgreementMaterial Adverse Effect; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsis not in violation of, or after in default under, nor has the Adviser received notice or lapse of time would allow, any proceedings relating to revocation or termination thereof or results in any other material impairment modification of the rights of the Adviser under any such permitConsent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Adviser, except where such revocation or modification would not, individually or in the revocationaggregate, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the an Adviser to perform its obligations under the Advisory Agreement.Material Adverse Effect;
(kx) Except as stated in this Agreement and in neither the Prospectus (and in any amendment or supplement thereto), the Adviser has not takenAdviser, nor will it taketo the Adviser’s knowledge, any of its affiliates has taken, directly or indirectly, without giving effect to any activities by the Underwriters, any action designed to designed, or which has constituted or might reasonably be expected under the Exchange Act, to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the SharesSecurities; provided, and that any activity permitted pursuant to Rule 10b-18 under the 1934 Act will not be deemed a violation of this paragraph;
(xi) the Adviser is not aware that (A) any executive, key employee or significant group of employees of the Company, if any, or the Adviser, plans to terminate employment with the Company, the Adviser or (B) any such action taken executive, key employee or significant group of employees is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates 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;
(xii) 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;
(xiii) the operations of the Adviser who are is and has been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Adviser and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Adviser 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 the Adviser Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser threatened;
(xiv) (A) neither the Adviser nor any director or officer thereof nor, to the Adviser’s knowledge, any employee, agent or representative acting on behalf of the Adviser, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (B) the Adviser has conducted its business in compliance with applicable anti-corruption laws and has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (C) the Adviser will not underwriters use, directly or dealers participating in indirectly, the net proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the Shares.payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws;
(lA) Each Prepricing Prospectus complied when filed with neither the Commission in all material respects with Adviser, nor any director, officer or employee thereof, nor to the provisions Adviser’s knowledge, any controlled affiliate, representative or agent of the 1933 ActAdviser is a Person that is, or is owned or controlled by one or more Persons that are:
(i) the subject of any Sanctions, or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the 1940 Act Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Cuba, Iran, North Korea and Syria);
(B) the Rules and Regulations. The Commission Adviser has not issued knowingly engaged in, is not now knowingly engaged in, and will not engage in, any order preventing prohibited dealings or suspending transactions with any Person, or in any country or territory, that at the use time of any Prepricing Prospectus the dealing or transaction is or was the Prospectussubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Direct Lending Fund)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.may
Appears in 1 contract
Samples: Underwriting Agreement (Gabelli Global Multimedia Trust Inc)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser has been duly formed and is a corporation duly incorporated and validly existing in good standing as a limited liability company under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)Prospectus, and is duly registered and qualified to conduct its do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or the conduct of its business which requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) 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, the Advisers Act Rules and Regulations, the 1940 Act Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Management Agreement for the Trust Fund or the Name Agreement, the Additional Compensation Agreement or the Structuring Fee Agreement as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse affect on the registration of the Adviser with the CommissionProspectus.
(c) There are no legal or governmental proceedings pending orThe Adviser has full power and authority to enter into this Agreement, to the knowledge of Management Agreement, the AdviserName Agreement, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the Management Agreement, the Name Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly and validly authorized by the Adviser, ; and this Agreement, the Management Agreement, the Name Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes constitute the valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, laws and subject to the qualification that the enforceability of the Trust's Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawprinciples.
(fd) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement, the Name Agreement, the Additional Compensation Agreement and the Advisory Structuring Fee Agreement.
(ge) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(hf) The Advisory Agreement complies in all material respects with all applicable provisions No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the 1940 ActAdviser, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
threatened that (i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should could reasonably be expected to have a material adverse effect on the ability of the Adviser to perform fulfill its obligations hereunder or under this the Management Agreement, the Name Agreement, the Additional Compensation Agreement or the Structuring Fee Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to the Advisory AgreementAdviser 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 Act, the 1940 Act or the Rules and Regulations.
(jg) The Adviser has such permits, licenses, franchises permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its properties property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory AgreementProspectus; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit.
(h) This Agreement, the Management Agreement, the Name Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) 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 Management Agreement, the Name Agreement, the Additional Compensation Agreement or the Structuring Fee Agreement, except where such as have been made or obtained under the revocationAct and the 1940 Act 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 Prospectus.
(j) Neither the execution, termination delivery or impairment performance of this Agreement or the Management Agreement, the Name Agreement, the Additional Compensation Agreement and the Structuring Fee Agreement, nor the consummation by the Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the charter or by-laws of the Adviser's rights under such permits should not reasonably , (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be expected bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to have a material adverse effect on the ability Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to perform its obligations under the Advisory Agreementterms of any agreement or instrument to which the Adviser is a party or by which the Adviser may be bound or to which any of the property or assets of the Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities issued by security of the Trust Fund to facilitate the sale or resale of the SharesSecurities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the SharesAdviser.
(l) Each Prepricing Prospectus complied when filed In the event that the Fund or the Adviser makes available any promotional materials intended for use only by qualified 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 qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the Commission in all material respects with the provisions offering of the 1933 ActSecurities shall be deemed a representation and warranty by the Adviser, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusas to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Macquarie Global Infrastructure Total Return Fund Inc.)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company, in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus, the Prospectus and the Registration Statement and to execute and deliver this Agreement; the Prospectus (Adviser has full power and any amendment or supplement authority to either of them), execute and deliver the Investment Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, constitute a material adverse effect on change in the ability business, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Management Agreement and (collectively a “Material Adverse Change”); the Advisory Agreement.
(b) 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 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Advisory Investment Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might materially adversely affect on the registration of the Adviser with the Commission.;
(cb) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser or any of its officers or members are or would be a party or of which any of their properties are or would be subject at law or in equity, that are required to be described 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 (i) constituting, individually or in the Registration Statement aggregate, a Material Adverse Change, or (ii) preventing the Prospectus consummation of the transactions contemplated hereby;
(c) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery result in any breach or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order violation of, constitute a default under or registration give the holder of any indebtedness (or filing withperson acting on such holder’s behalf), the Commissionright to require the repurchase, the NASDredemption or repayment of all or part of such indebtedness under) (i) its charter, any state securities commissionbylaws, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsformation, limited liability company operating agreement, or other organizational documents, of the Adviser as applicable, or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute a Material Adverse Change and would not adversely affect the consummation of the transactions contemplated hereby, and the execution, delivery and performance of this Agreement, and the Investment Management 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 of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on Material Adverse Change and would not adversely affect the ability consummation of the Adviser to perform its obligations under transactions contemplated hereby;
(d) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser Adviser, and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject to the qualification that (i) the enforceability of the Trust's obligations hereunder and thereunder thereof may be limited by bankruptcy, fraudulent conveyancereorganization, insolvency, reorganizationmoratorium (including, moratoriumwithout limitation, and other all laws relating to fraudulent transfers) or similar laws now or thereafter in effect affecting creditors' ’ rights generally and (ii) rights to indemnification and contribution may be limited by general equitable principles of general applicability whether enforcement is considered in a proceeding in of equity or at law.in law or by state or federal securities laws or the policies underlying such laws;
(e) the description of the Adviser and its business contained in the Preliminary Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(f) The the Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto) and the Registration Statement and under this Agreement and the Advisory Investment Management Agreement.;
(g) The description subsequent to the date of the Adviser in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of there has not been any Material Adverse Change, or any development involving a prospective Material Adverse Change that would otherwise prevent the circumstances Adviser from carrying out its obligations under which they were made) not misleading.the Investment Management Agreement;
(h) The Advisory Agreement complies the Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in all material respects with all order to conduct its business, except where the failure to make such filings on or to obtain such Consents would not constitute a Material Adverse Change; the Adviser is not in violation of, or in default under, nor has the Adviser 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 provisions of to the 1940 ActAdviser, except where such revocation or modification would not, individually or in the 1940 Act Rules and Regulationsaggregate, the Advisers Act and the Advisers Act Rules and Regulations.constitute a Material Adverse Change;
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment of its partners, officers, affiliates or supplement thereto), except to the extent that the failure to so controlling persons have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and Notes;
(j) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, or the Adviser plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute a Material Adverse Change; and
(lk) Each Prepricing Prospectus complied when filed the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Commission Company’s assets is permitted only in all material respects accordance with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Capital Investment Corp)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter thatas follows:
(a) The Adviser is a corporation duly incorporated organized and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as 15 15 described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to so register or to qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(b) 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 for the Trust Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, or to which the Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should may reasonably be expected to have involve a prospective material adverse effect change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Adviser and its subsidiaries, taken as a whole, or on the ability of the Adviser to perform its obligations under this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Investment Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsby-laws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser it or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties or 16 16 will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) 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 this Agreement and the Investment Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit; and, except where as described in the revocationProspectus (and any amendment or supplement thereto), termination or impairment none of such permits contains any restriction that is materially burdensome to the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(kj) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any securities issued by the Trust Fund to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in Adviser; it being understood that the offering Underwriters include certain affiliates of the SharesAdviser and that stabilization or other activity by the Representatives on behalf of the Underwriters shall not be deemed to be violative of this representation.
(lk) Each Prepricing Prospectus complied when filed with Marix X. Xxxxxxx xx the Commission in all material respects with the provisions validly appointed Chairman, President, Chief Investment Officer and Director of the 1933 Act, the 1940 Act Adviser and the Rules portfolio manager of the Fund; Mr. Xxxxxxx xxx not given notice nor made known an intention to give notice of termination of his employment and Regulations. The Commission has not issued any order preventing or suspending the use Adviser knows of any Prepricing Prospectus or no reason why Mr. Xxxxxxx xxxuld be unable to serve as portfolio manager to the ProspectusFund.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The the Adviser has been duly formed and is a corporation duly incorporated and validly existing as a Delaware limited liability company, in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement and to execute and deliver this Agreement; the Prospectus (Adviser has full power and any amendment or supplement authority to either of them), execute and deliver the Investment Management Agreement; and the Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have in the aggregate, constitute a material adverse effect on change in the ability business, financial condition, capitalization or regulatory status of the Adviser such entity, or otherwise reasonably be expected to perform prevent such entity from carrying out its obligations under this the Investment Management Agreement and the Advisory Agreement.(collectively, a “Material Adverse Change”);
(b) 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 Advisers Act Rules and Regulations, the 1940 Investment Company Act or the 1940 Act Rules applicable published rules and Regulations regulations thereunder from acting under the Advisory Investment Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.;
(c) There there are no legal actions, suits, claims, investigations or governmental proceedings pending or, to the knowledge of the Adviser, threatened against to which the AdviserAdviser or any of its officers or members are or would be a party or of which any of their properties are or would be subject at law or in equity, that are required to be described 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 Statement aggregate, a Material Adverse Change, or (B) preventing the Prospectus consummation of the transactions contemplated hereby;
(d) the Adviser is not in breach or violation of, or in default under (nor has any amendment event occurred which with notice, lapse of time, or supplement to either of them) but are not described as required or that should both would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery result in any breach or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order violation of, constitute a default under or registration give the holder of any indebtedness (or filing withperson acting on such holder’s behalf), the Commissionright to require the repurchase, the NASDredemption or repayment of all or part of such indebtedness under) (i) its charter, any state securities commissionbylaws, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylawsformation, limited liability company operating agreement, or other organizational documents, of the Adviser as applicable, or (Bii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease 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 is a party or by which the Adviser or any of its properties may be boundparty, or materially violates (iii) any federal, state, local or will materially violate any material statute, foreign law, regulation or judgmentrule or any decree, injunction, judgment or order or decree applicable to the Adviser Adviser, as the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not constitute a Material Adverse Change, and the execution, delivery and performance of this Agreement, and the Investment Management 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 of its properties license, lease, contract or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any other agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subjecta party, except in any case under clause (A) or (Biii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser, as should the case may be, except, with respect to clauses (ii) and (iii), to the extent that any such contravention would not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under Material Adverse Change;
(e) this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Investment Management Agreement have been duly and validly authorized by the Adviserauthorized, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser Adviser, and, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes the constitute valid and legally binding agreement agreements of the Adviser, enforceable against the Adviser in accordance with its their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and subject to the qualification that (i) the enforceability of the Trust's obligations hereunder and thereunder thereof may be limited by bankruptcy, fraudulent conveyancereorganization, insolvency, reorganizationmoratorium (including, moratoriumwithout limitation, and other all laws relating to fraudulent transfers) or similar laws now or thereafter in effect affecting creditors' ’ rights generally and (ii) rights to indemnification and contribution may be limited by general equitable principles of general applicability whether enforcement is considered in a proceeding in of equity or at law.in law or by state or federal securities laws or the policies underlying such laws;
(f) The the description of the Adviser contained in the Pre-Pricing Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all material respects;
(g) the Adviser 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 (or any amendment or supplement thereto) and the Registration Statement and under this Agreement and the Advisory Investment Management Agreement.
(g) The description of the Adviser in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 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 required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.;
(h) The Advisory Agreement complies in all material respects with all applicable provisions subsequent to the date of the 1940 ActRegistration Statement, the 1940 Act Rules and Regulations, the Advisers Act Pre-Pricing Prospectus and the Advisers Act Rules and Regulations.Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in the business, financial condition, capitalization or regulatory status of the Adviser, or that would otherwise prevent the Adviser from carrying out its obligations under the Investment Management Agreement;
(i) Except as disclosed the Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in order to conduct its business, except where the failure to obtain such Consents would not constitute a Material Adverse Change; the Adviser is not in violation of, or in default under, nor has the Adviser 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, except where such revocation or modification would not, individually or in the Registration Statement and the Prospectus (or any amendment or supplement to either of them)aggregate, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have constitute a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.Material Adverse Change;
(j) The the Adviser has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment of its partners, officers, affiliates or supplement thereto), except to the extent that the failure to so controlling persons have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and ;
(k) the Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company, if any, or the Adviser plans to terminate employment with the Company or the Adviser or (ii) any such action taken executive or key employee is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be taken violated by any affiliates the present or proposed business activities of the Company or the Adviser who are except where such termination or violation would not underwriters or dealers participating in the offering of the Shares.constitute a Material Adverse Change; and
(l) Each Prepricing Prospectus complied when filed the Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Commission Company’s assets is permitted only in all material respects accordance with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing its management’s general or suspending the use of any Prepricing Prospectus or the Prospectusspecific authorization.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Kelso Capital CORP)
Representations and Warranties of the Adviser. The Adviser represents and warrants to each Underwriter the Underwriters that:
(a) The Adviser is a corporation has been duly incorporated organized and validly existing exists as a Delaware limited liability company, and in good standing under the laws of the State of Delaware, with full corporate power power, right and authority to own, lease and operate its properties and to conduct its business business, including, performing its obligations under the Management Agreement and the Administration Agreement. Subsequent to the respective dates as described of which information is given in the Registration Statement and the Prospectus, except as disclosed in the Registration Statement and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (i) the business, condition (financial or otherwise), or regulatory status of the Adviser that could reasonably be expected to prevent the Adviser from carrying out its obligations under this Agreement, the Management Agreement or the Administration Agreement, or (ii) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement or the Prospectus (collectively, an “Adviser MAC”). The Adviser has full right, power and any amendment or supplement authority to either of them)execute and deliver this Agreement, the Management Agreement and the Administration Agreement. The Adviser is duly registered and qualified to conduct its do business as a foreign entity and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so register qualified and in good standing would not, individually or to qualify does not have a material adverse effect on in the ability of the aggregate, constitute an Adviser to perform its obligations under this Agreement and the Advisory AgreementMAC.
(b) 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 Investment Company Act or the 1940 Act Rules applicable rules and Regulations regulations thereunder from acting under the Advisory Management Agreement for the Trust Company as contemplated by the Prospectus (or any amendment or supplement thereto)Prospectus. There does not exist any proceeding or, to the Adviser’s knowledge, any facts or circumstances the existence of which should reasonably be expected could lead to have a material adverse any proceeding which might adversely affect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser 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 Trust's obligations hereunder and 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 whether enforcement is considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus (or any amendment or supplement thereto) and under this Agreement, and the Company Agreements to which it is a party.
(d) There are no actions, suits, claims, investigations or proceedings pending or, to the knowledge of the Adviser, threatened to which the Adviser or any of its officers, partners or members are or would be a party or of which any of their 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 result in a judgment, decree or order either (A) constituting, individually or in the aggregate, an Adviser MAC or (B) preventing the consummation of the transactions contemplated hereby.
(e) The Adviser is not in breach or violation of, or in default (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 right to require the repurchase, redemption or repayment of all or part of such indebtedness) under (i) its limited liability company operating agreement or other organizational documents, or (ii) the Management Agreement or the Administration Agreement, 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 which the Adviser is a party, or (iv) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Adviser except, with respect to clauses (iii) and (iv), to the extent that any such contravention would not constitute an Adviser MAC.
(f) This Agreement, the Management Agreement and the Advisory AgreementAdministration Agreement have been duly and validly authorized, executed and delivered by the Adviser. The Management Agreement and the Administration Agreement constitute valid and legally binding agreements of the Adviser, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(g) The description of the Adviser and the statements attributable to the Adviser contained in the Registration Statement Prospectus are true, accurate and the Prospectus (and any amendment or supplement to either of them) complete in all material respects, complied and comply in all material respects with the provisions of the 1933 Securities Act, the 1940 Investment Company Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules rules and Regulations regulations under such Acts, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectustherein, in light of the circumstances under which they were made) , not misleading.
(h) The Advisory Agreement complies Adviser has all Consents and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and has obtained all necessary Consents from other persons, in all material respects with all order to conduct its business, except where the failure to obtain such Consents would not constitute an Adviser MAC; the Adviser is not in violation of, or in default under, nor has the Adviser 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 provisions of to the 1940 ActAdviser, except where such revocation or modification would not, individually or in the 1940 Act Rules and Regulationsaggregate, the Advisers Act and the Advisers Act Rules and Regulationsconstitute an Adviser MAC.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability None of the Adviser to perform or any of its obligations under this Agreement and the Advisory Agreement.
(j) The Adviser respective partners, officers, affiliates or controlling persons has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed designed, under the Exchange Act, to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any securities issued by security of the Trust Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(j) The Adviser is not aware that (i) any executive, key employee or significant group of employees of the Company or the Adviser, as applicable, plans or plan to terminate employment with the Company or the Adviser or (ii) any such executive or key employee is subject to any noncompete, 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 constitute an Adviser MAC.
(k) The Adviser is using its best efforts to develop and implement a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management 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.
(l) Each Prepricing Prospectus complied when filed with The Adviser 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 Commission in all material respects with the provisions Administration Agreement are recorded as necessary to permit preparation of the 1933 ActCompany’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.
(m) The Adviser maintains insurance in such amounts and covering such risks as the Adviser reasonably considers adequate for the conduct of its business and the value of its properties, all of which insurance is in full force and effect, except where the failure to maintain such insurance could not reasonably be expected to be an Adviser MAC. There are no material claims by the Adviser under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. Subject to changes in pricing in the insurance industry generally (as to which the Adviser makes no representation or warranty), the 1940 Act Adviser has no reason to believe that it will not be able to renew its existing insurance as and when such coverage expires or will not be able to obtain replacement insurance adequate for the conduct of the business and the Rules and Regulations. The Commission has value of its properties at a cost that could not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectusreasonably be expected to cause an Adviser MAC.
Appears in 1 contract
Representations and Warranties of the Adviser. The Adviser hereby represents and warrants to each Underwriter the Fund that:
(a) The Adviser (i) is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or to qualify does not have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Investment Management Agreement remains in effect; (ii) is not prohibited by the Advisers Act, Act or the Advisers Act Rules from performing the services contemplated by this Investment Management Agreement; (iii) has appointed a Chief Compliance Officer under Rule 206(4)-7 under the Advisers Act; (iv) has adopted written policies and Regulationsprocedures that are reasonably designed to prevent violations of the Advisers Act from occurring, detect violations that have occurred and correct promptly any violations that have occurred, and will provide prompt notice of any material violations relating to the 1940 Fund; (v) has met and will seek to continue to meet for so long as this Investment Management Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency; (vi) has the authority to enter into and perform the services contemplated by this Investment Management Agreement; and (vii) will promptly notify the Fund of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the Act or otherwise.
(b) The Adviser has adopted a written code of ethics complying with the 1940 Act Rules and Regulations from acting requirements of Rule 17j-1 under the Advisory Agreement for Act and will provide the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have Fund with a material adverse affect on the registration copy of the Adviser with the Commissioncode of ethics.
(c) There are is no legal pending, or governmental proceedings pending or, to the knowledge best of the Adviserits knowledge, threatened against the Adviseror contemplated action, that are required to be described in the Registration Statement suit or the Prospectus (proceeding before or any amendment or supplement to either of them) but are not described as required or that should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory bodygovernmental, administrative agency or other governmental body, agency self-regulatory body or official having jurisdiction over the Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument arbitration panel to which the Adviser is a party or by which the Adviser or any of its properties may be bound, principals or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it affiliates is a party or by which it may be bound party, or to which any of the property or assets of the Adviser is subject, except in any case under clause (A) or (B) as should not which reasonably might be expected to have a (i) result in any material adverse effect on change in the ability Adviser’s condition (financial or otherwise), business or prospects; (ii) affect adversely in any material respect any of the Adviser Adviser’s assets; (iii) materially impair the Adviser’s ability to perform discharge its obligations under this Agreement Investment Management Agreement; or (iv) result in a matter which would require an amendment to the Adviser’s Form ADV Part 2; and the Advisory Agreement. The Adviser is has not subject to received any order notice of any court or of any arbitrator, governmental authority or administrative agency.
(e) The execution and delivery of, and the performance an investigation by the Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly and validly authorized by the Adviser, and this Agreement and the Advisory Agreement have been duly executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by Commission or any state regarding U.S. federal or state securities laws, and subject to the qualification that the enforceability of the Trust's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to regulations or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at lawrules.
(fd) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated All references in the Prospectus (or any amendment or supplement thereto) Disclosure Documents concerning the Adviser and under this Agreement its affiliates and the Advisory Agreement.
(g) The description controlling persons, affiliates, stockholders, members, directors, officers and employees of any of the foregoing provided or approved by the Adviser for use in the Registration Statement and Disclosure Documents, as well as all performance information provided or approved by the Prospectus (and any amendment or supplement to either of them) complied and comply Adviser for such use, are accurate in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will do not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) such information not misleading.
(h) The Advisory Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event which should reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and the Advisory Agreement.
(je) The Adviser has such permitssupplied to, licensesor made available for review by, franchises the Fund (and authorizations of governmental or regulatory authorities ("permits"if requested by the Fund to its designated auditor) as all documents, statements, agreements and workpapers reasonably requested by it relating to accounts covered by the Adviser’s performance results and which are necessary to own its properties and to conduct its business in the manner described in Adviser’s possession or to which it has access. The foregoing representations and warranties shall be continuing and be deemed repeated at and as of all times during the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability term of the Adviser to perform its obligations under the Advisory Agreement; the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Adviser under any such permit, except where the revocation, termination or impairment of the Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under the Advisory this Investment Management Agreement.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Adviser has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities issued by the Trust to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser who are not underwriters or dealers participating in the offering of the Shares.
(l) Each Prepricing Prospectus complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus or the Prospectus.
Appears in 1 contract
Samples: Investment Management Agreement (MidBridge Private Markets Fund)
