Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof: (a) The Adviser (i) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the Adviser. (b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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). (c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser. (d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser. (e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder. (f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading. (g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 4 contracts
Samples: Financial Warranty Agreement (Merrill Lynch Principal Protected Trust), Financial Warranty Agreement (Merrill Lynch Principal Protected Trust), Financial Warranty Agreement (Merrill Lynch Principal Protected Trust)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider Underwriters as followsof the date of this Agreement, on as of the Applicable Time and as of the effective date hereofClosing Date, and agrees with the Underwriters as follows:
(a) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the condition (financial or otherwise), earnings, assets, 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, individually or in the aggregate, to result in a Company Material Adverse Effect, or would otherwise reasonably be expected, individually or in the aggregate, to prevent the Adviser from carrying out its obligations under the Investment Advisory Agreement or under the Administration Agreement (an “Adviser Material Adverse Effect”).
(b) The Adviser (i) has been duly organized and is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) Delaware and has the power and authority to own own, lease and operate its assets properties and to transact conduct its business as described in the business in which it is engagedRegistration Statement, (iii) the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; the Adviser has the corporate power and authority to execute and deliver and perform its obligations under each of the Investment Advisory Agreement and the Administration Agreement; and the Adviser and each of its subsidiaries is duly qualified to do transact business as a foreign entity and is in good standing under the laws in each other jurisdiction in which such qualification is required, whether by reason of each jurisdiction where its ownership or lease leasing of its property or the conduct of its business requires such qualificationbusiness, except except, in each case, where the failure to so qualify or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Lawotherwise reasonably be expected, except where non-compliance would not have an Adverse Effect in respect of the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 individually or in respect ofthe aggregate, any Government Authority is required to result in connection with the execution, delivery, performance, validity or enforceability by or against the an Adviser of the Transaction Documents to which it is a party, except for such consents, authorizations, filings or acts the absence of which would not have an Material Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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)Effect.
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisers Act; Advisory Agreement for other Saratoga Entities as contemplated by the Registration Statement, the General Disclosure Package and to the best of the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances the existence of which could reasonably be expected, individually or in the aggregate, to lead to any proceeding, which might adversely affect the registration of the Adviser with the Commission.
(d) There is no action, suit, claim 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 agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened, against or affecting the Adviser which is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or which would reasonably be expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect, or which would reasonably be expected, individually or in the aggregate, to materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Investment Advisory Agreement or the Administration Agreement; the aggregate of all pending legal or governmental proceedings to which the Adviser is a party or of which any of its property or assets is the subject which are not prohibited by any provision described in the Registration Statement and/or the Prospectus, including ordinary routine litigation incidental to its business, would not reasonably be expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect.
(e) None of the Investment Advisers Act Adviser or any of its subsidiaries is (i) in violation of its organizational or governing documents, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Adviser 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 is subject (collectively, the “Agreements and Instruments”), or (iii) in violation of any law, statute, rule, regulation, judgment, order or decree except, in the case of clauses (ii) and (iii) only, for such violations or defaults that would not reasonably be expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Company ActAdvisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Adviser with its obligations hereunder and under the Investment Advisory Agreement and the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the respective rules and regulations thereundercreation or imposition of any lien, from acting as an investment adviser charge or encumbrance upon any property or assets of the Fund Adviser pursuant to the Agreements and Instruments except for such violations or defaults that would not reasonably be expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect, nor will such action result in any violation of the provisions of the limited liability company operating agreement (as contemplated hereunderamended to date) of the Adviser; 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.
(f) All factual information prepared Each of this Agreement, the Investment Advisory Agreement and furnished the Administration Agreement is a valid and binding obligation of the Adviser, enforceable against it in accordance with its terms, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefore may be brought.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Adviser of its obligations hereunder, in connection with the offering, issuance or on behalf sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), except such as have been already obtained under the 1933 Act and the 1940 Act or will be obtained by the Closing Date.
(h) The descriptions of the Adviser to and its business contained in the Warranty Provider (whether prepared by Registration Statement, the Adviser General Disclosure Package, the Prospectus, and any Written Testing-the-Waters Communication and Sales Material do not contain any untrue statement of a material fact or any other Person) for purposes of or in connection with this Agreement, any 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 a material fact necessary to make such information the statements therein, in light of the context circumstances in which it is furnished they were made, not misleading.
(gi) To The Adviser possesses such licenses issued by the best 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, individually or in the aggregate, result in an Adviser Material Adverse Effect; the Adviser is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, result in an Adviser Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the aggregate, result in an Adviser Material Adverse Effect; and the Adviser has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected, individually or in the aggregate, to result in an Adviser Material Adverse Effect.
(j) Neither the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable nor to the Adviser’s knowledge, any of its affiliates, has been enacted taken or deemed will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities.
(k) The Adviser maintains data processing, communications and other technology systems sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Adviser has adopted policies and procedures reasonably designed to prevent data breaches and other breaches of applicable privacy laws.
(l) The Adviser (i) has adopted and implemented written policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act reasonably designed to prevent violations of the Advisers Act by any Government Authority the Adviser; (ii) is conducting its business in compliance with all laws, rules, regulations, decisions, directives and orders except for such failure to comply which would make not reasonably be expected to result in an Adviser Material Adverse Effect; and (iii) is conducting its business in compliance in all material respects with the transactions contemplated applicable requirements of the Advisers Act.
(m) The Adviser is not aware that (i) any executive, key employee or significant group of employees of any of the Saratoga Entities, as applicable, plans to terminate employment with the respective Saratoga Entity, or (ii) any such executive or key employee is subject to any non-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the Transaction Documents illegal present or otherwise prevent proposed business activities of the consummation thereofSaratoga Entities except where such termination or violation would not reasonably be expected to have an Adviser Material Adverse Effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Saratoga Investment Corp.), Underwriting Agreement (Saratoga Investment Corp.), Underwriting Agreement (Saratoga Investment Corp.)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to each Agent as of the Warranty Provider as follows, on date hereof and as of the effective date hereofeach Representation Date on which a certificate is required to be delivered pursuant to Section 8(p) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with each Agent, as follows:
(ai) The Adviser (i) has been duly formed and is validly existing as a limited partnership duly organized, validly existing and liability company in good standing under the laws of the State of Delaware, (ii) has with the corporate power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Prospectus and enter into this Agreement and the Company Agreements and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Adviser (an “Adviser Material Adverse Effect”). The Adviser has no subsidiaries.
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act, and (iv) is in compliance with all Requirements not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement and the Prospectus, and no order of Lawsuspension or revocation of such registration has been issued or proceedings therefor initiated or, except where non-compliance would not have an Adverse Effect in respect to the knowledge of the Adviser, threatened by the Commission.
(biii) The Adviser has Each of this Agreement and the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document Company Agreements to which the Adviser is a party, when has been duly authorized by the Adviser. Each Company Agreement to which the Adviser is a party, complies with the applicable provisions of the Securities Act, the Investment Company Act and the Advisers Act. Each Company Agreement to which the Adviser is a party has been duly executed and delivereddelivered by the Adviser and (assuming the due and valid authorization, will constitute, execution and delivery by the other parties thereto) represents a legal, valid and binding obligation agreement of the Adviser Adviser, enforceable against it the Adviser, in accordance with its terms, except (a) as enforceability rights to indemnity and contribution may be limited by applicable federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium receivership, moratorium, and other laws relating to or similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is sought by proceedings considered in a proceeding in equity or at law), and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(civ) The executionexecution and delivery by the Adviser of, delivery and the performance by the Adviser of the Transaction Documents to which it is a party its obligations under, this Agreement and each Company Agreement does not and conflict with or will not violate any Requirement of Law or Contractual Obligation of the Adviser and will not conflict with, result in, or requireconstitute a violation, breach of, default under, (x) the limited liability company operating agreement of the Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Adviser that is material to the Adviser or (z) any law, rule or regulation applicable to the Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by the Agents.
(v) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Adviser for the performance by the Adviser of its obligations under this Agreement or the Company Agreements, except such as have been obtained and as may be required by (i) the Securities Act, the creation Investment Company Act, the Advisers Act or imposition the Exchange Act, (ii) the rules and regulations of any Lien the FINRA or the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(vi) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened to which the Adviser is a party or to which any of its propertyproperties is subject (i) other than proceedings accurately described in all material respects in the Prospectus or 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 and are not so described.
(vii) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets or revenuesand to conduct its business in the manner described in the Prospectus, except where such violation to the extent that the failure to obtain, declare or Lien file the foregoing would not result in an Adviser Material Adverse Effect.
(viii) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and by this Agreement and the Company Agreements.
(ix) The Investment Advisory Agreement is in full force and effect and neither the Adviser nor, to the knowledge of the Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Adviser under such document.
(x) All information furnished by the Adviser for use in the Registration Statement and the Prospectus, including, without limitation, the description of the Adviser does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such information not misleading (in the case of the Prospectus, in light of the circumstances under which such information is provided).
(xi) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser from that set forth in the Prospectus, and there have been no transactions entered into by the Adviser which are material to the Adviser other than those in the ordinary course of its business or as described in the Prospectus.
(xii) Neither the Adviser nor any of its affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to have an Adverse Effect in respect constitute, cause or result in, the stabilization or manipulation of the Adviser. The Adviser is not in violation price of any Contractual Obligation, except where such violation would not reasonably be expected security to have an Adverse Effect in respect facilitate the sale or resale of the AdviserShares.
(dxiii) No litigationThe operations of the Adviser are and have been conducted at all times in compliance with applicable Money Laundering laws and no action, suit or proceeding or investigation of by or before any court or governmental agency, authority or body or any arbitrator or Governmental Authority involving the Adviser with respect to the Money Laundering laws is pending or, to the knowledge of the Adviser's knowledge, threatened threatened.
(xiv) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) asserting transactions effectuated by it under the invalidity Investment Advisory Agreement are executed in accordance with its management’s general or unenforceability of any of the Transaction Documents, specific authorization and (ii) seeking access to prevent the consummation of any of the transactions contemplated by the Transaction Documents Company’s assets is permitted only in accordance with its management’s general or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviserspecific authorization.
(exv) The Adviser is duly registered with the Commission as an investment adviser maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions for which it has bookkeeping and record keeping responsibility for under the Investment Advisers Act; Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished Company’s assets. Any certificate signed by or on behalf of the Adviser and delivered to the Warranty Provider (whether prepared by Agents or counsel for the Adviser or any other Person) for purposes of or Agents in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby is true Agreement shall be deemed to be a representation and accurate in all material respects on warranty by the date Adviser 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make matters covered therein to the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofAgents.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Saratoga Investment Corp.), Equity Distribution Agreement (Saratoga Investment Corp.)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 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 from that set forth in the Time of Sale Prospectus.
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, 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 proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(r) The operations of the Adviser Entity are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including 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 Transaction Documents illegal or otherwise prevent Adviser with respect to the consummation thereofAnti-Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Horizon Technology Finance Corp), Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to and agrees with each of the Warranty Provider as follows, on and Underwriters as of the effective date hereofapplicable Representation Date as follows:
(a) The Adviser (i) has been duly formed and is a limited partnership duly organized, validly existing as a Delaware limited partnership, and is in good standing under the laws of the State of Delaware, (ii) has the with full power and authority to own own, lease and operate its assets properties and to transact conduct its business as described in the business in which it is engaged, (iii) Prospectus; and the Adviser is duly qualified to do business as a foreign entity and is in good standing under the laws of in each jurisdiction where its the ownership or lease leasing of property its properties or the conduct of its business requires such qualification, except where the failure to be so qualify qualified and in good standing would not have an Adverse Effect not, individually or in respect the aggregate, constitute a material adverse change in the business, financial condition, capitalization or regulatory status of such entity, or otherwise be reasonably be expected to prevent the Adviser and from carrying out its obligations under the Investment Advisory Agreement (iv) is in compliance with all Requirements of Lawcollectively, except where non-compliance would not have an a “Material Adverse Effect in respect of the AdviserChange”).
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; Act and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Advisers Act, the Investment Advisers Company Act or the Investment Company Act, or the respective applicable published rules and regulations thereunder, thereunder from acting under the Investment Advisory Agreement for the Company as an investment adviser contemplated by the Prospectus.
(c) There are no actions, suits, claims, investigations or proceedings pending or, to the knowledge of the Fund as Adviser, threatened to which the Adviser is 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 or local 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, a Material Adverse Change, or (B) preventing the consummation of the transactions contemplated hereunderhereby.
(d) The Adviser is not in breach or violation of, or in default under (i) its limited partnership agreement, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Adviser is a party, or (iii) any federal, state or local law, regulation or rule or any decree, judgment or order applicable to the Adviser except, with respect to clauses (ii) and (iii), to the extent that any such contravention would constitute a Material Adverse Change.
(e) The execution, delivery and performance of this Agreement and the 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 partnership agreement, or (ii) other organizational documents of the Adviser 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 or local law, regulation or rule or any decree, judgment or other applicable to the Adviser except, with respect to clauses (ii), (iii) and (iv), to the extent that any such contravention would not have a Material Adverse Change.
(f) All factual information prepared This Agreement and furnished the Investment Advisory Agreement have been duly authorized, executed and delivered by the Adviser; the Adviser has full power and authority to execute and deliver this Agreement and the Investment Advisory Agreement; each of this Agreement and the Investment Advisory Agreement constitute a valid and legally binding agreement of the Adviser, subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or on behalf similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers), (ii) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law) and (iii) any principles of public policy.
(g) The description of the Adviser to contained in the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby Prospectus is true and accurate in all material respects on as of 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 to make such information in the context in which it is furnished not misleadingindicated.
(gh) To The Adviser has the best financial resources available to it necessary for the performance of its services and obligations as contemplated in the Adviser's knowledgeProspectus, no statuteunder this Agreement and the Investment Advisory Agreement.
(i) The Adviser has all Consents and has made all necessary filings required under any federal, rulestate or local law, regulation or orderrule and has obtained all necessary Consents from other persons, in each case applicable order to conduct its business, except where the Adviserfailure to obtain such Consents would not constitute a Material Adverse Change.
(j) Neither the Adviser nor any of its partners or officers has taken, has been enacted directly or deemed applicable by indirectly, any Government Authority which would make action designed, under the transactions contemplated by 1934 Act, to result in the Transaction Documents illegal stabilization or otherwise prevent manipulation of the consummation thereofprice of any security of the Company to facilitate the sale of the Underwritten Securities.
Appears in 2 contracts
Samples: Terms Agreement (Apollo Investment Corp), Terms Agreement (Apollo Investment Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider each Underwriter as follows, on and as of the effective date hereof:
(a) The Adviser (i) has been duly formed and is a limited partnership duly organized, validly existing and in good standing as a corporation under the laws of the State of DelawareIllinois, (ii) has the with full corporate power and authority to own own, lease and operate its assets properties and to transact conduct its business as described in the business in which it is engagedProspectus, (iii) and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business which requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect a material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect operations of the Adviser.
(b) 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, the Structuring Fee Agreements or the Additional Compensation Agreement as contemplated by the Prospectus.
(c) The Adviser has the full power and authority to executeenter into this Agreement, deliver the Management Agreement, the Structuring Fee Agreements and perform the Transaction Documents to which it is a party Additional Compensation Agreement; the execution 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 and the performance by or in respect of, any Government Authority is required in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser of its obligations under, this Agreement, the Transaction Documents to which it is a partyManagement Agreement, except for such consents, authorizations, filings or acts the absence of which would not Structuring Fee Agreements and the Additional Compensation Agreement have an Adverse Effect in respect of been duly and validly authorized by the Adviser. This ; and this Agreement, the Management Agreement, the Structuring Fee Agreements and the Additional Compensation Agreement has been, and each other Transaction Document to which the Adviser is a party will be, have been duly executed and delivered on behalf by the Adviser and constitute the valid and legally binding agreements of the Adviser. This Agreement constitutes, and each other Transaction Document to which enforceable against the Adviser is a party, when executed and delivered, will constitute, a legal, valid and binding obligation of the Adviser enforceable against it in accordance with its their terms, except as enforceability rights to indemnity and contribution hereunder may be limited by applicable federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles principles.
(d) 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, the Management Agreement, the Structuring Fee Agreements and the Additional Compensation Agreement.
(e) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving 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 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, the Structuring Fee Agreements or the Additional Compensation 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 enforcement is sought by proceedings or not arising from transactions in equity the ordinary course of business, except as set forth in or at lawcontemplated in the Prospectus (exclusive of any supplement thereto).
(cg) 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 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, except where the failure to hold any such permit 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, the Management Agreement, the Structuring Fee Agreements or the Additional Compensation 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, the Structuring Fee Agreements and the Additional Compensation 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, the Structuring Fee Agreements or the Additional Compensation 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.
(k) Neither the execution, delivery and or performance of this Agreement, the Management Agreement, the Structuring Fee Agreements or the Additional Compensation Agreement, nor the consummation by the Fund or the Adviser of the Transaction Documents transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of the certificate of incorporation 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 it the Adviser is a party does not and or by which it or any of its properties may be bound or (iii) materially violates or will not materially violate any Requirement of Law material statute, law, regulation or Contractual Obligation of filing or judgment, injunction, order or decree applicable to the Adviser and or any of its properties or will not result in, or require, in the creation or imposition of any Lien on 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 its propertythe property or assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus, assets the Adviser has not taken and nor will it take, directly or revenuesindirectly, except where such violation any action designed to or Lien would not which should reasonably be expected to have an Adverse Effect cause or result in respect or which will constitute, stabilization or manipulation of the Adviser. The price of the any security of the Fund in violation of federal securities laws and the Adviser is not in violation aware of any Contractual Obligation, except where such violation would not reasonably action taken or to be expected to have an Adverse Effect in respect taken by any affiliates of the Adviser.
(dm) No litigation, proceeding In the event that the Fund or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; 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 is not prohibited 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 any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules persons other than qualified broker-dealers and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Calamos Strategic Total Return Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 Securities.
(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 from that set forth in the Time of Sale Prospectus.
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, 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 proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that 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 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 Securities.
(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 from that set forth in the Time of Sale Prospectus.
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, 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 proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the ------------------------------------------------- Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of DelawareColorado, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would could not reasonably be expected to have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for other than such consents, authorizations, filings or acts the absence of which would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Government Authority is pending or, to the Adviser's knowledge, threatened (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 or Documents, (iii) seeking any determination or ruling that would could reasonably be expected to have an Adverse Effect in respect or (iv) asserting any violation by the Adviser or the Fund of the AdviserInvestment Advisers Act or the Investment Company Act 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.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, knowledge there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the 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 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation, order or publicly available interpretation of any such statute, rule, regulation or order, in each case applicable to the Adviser, order by a Government Authority has been enacted or deemed applicable by any Government Authority which that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofthereof 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 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 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 shares of each class of the Underlying Fund are duly authorized and validly issued and are outstanding, fully paid and nonassessable and conform in all respects to the description thereof contained in the registration statement with respect to such shares.
(j) 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. 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.
(k) The Adviser is not aware of any action or inaction by it or any of the registered investment companies for which it serves as investment advisor, administrator, manager or sponsor (including the Fund and the Underlying Fund, the "Xxxxxxxxxxx Advised Funds"), including by any --------------------------- officer, director, employee or agent of any such person, that would constitute a material violation of any statute, rule, regulation, No-Action Letter or Interpretive Release of the Commission, internal policy of the Adviser or any Xxxxxxxxxxx Advised Fund, or fiduciary responsibility, including by permitting or otherwise condoning (1) frequent trading activity by a shareholder of an Xxxxxxxxxxx Advised Fund that would be contrary to the published policy of the relevant Xxxxxxxxxxx Advised Fund or that would be disruptive to the management of portfolios which the Adviser advises, (2) late trading activity, or (3) selective disclosure of portfolio holdings.
(l) No Class of Shares of the Fund is authorized or scheduled to convert into any other Class of Shares of the Fund during the period after the Offering Period through and including the Maturity Date.
Appears in 1 contract
Samples: Financial Warranty Agreement (Oppenheimer Principal Protected Trust Ii)
Representations and Warranties of the Adviser. To induce the Warranty Provider Insurer to enter into this the Original Agreement and to issue the Financial WarrantyPolicy, the Adviser hereby represents represented and warrants warranted to the Warranty Provider Insurer as follows, on and as of the effective date hereofOriginal Effective Date:
(a) The Adviser (i) is a limited partnership liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it the Adviser is a party does 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, revenues except where such violation or Lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No Except as set forth on Schedule 2 no litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All There has been no event, condition, action or omission since the Adviser's financial statements for the fiscal year ended December 31, 2000 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions which have been specifically disclosed in writing to the Insurer.
(g) The most recent balance sheets of the Adviser, commencing with the fiscal year ended December 31, 2000, and the related statements of earnings of the Adviser, have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the Adviser as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Smith Barney Trust Ii)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 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 from that set forth in the Time of Sale Prospectus.
(i) 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 (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that 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, Burma/Myanmar, 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, as applicable, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement, the Administration Agreement, the Indenture, the Securities and the DTC 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, the Investment Management Agreement or the Administration 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 Securities.
(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 from that set forth in the Time of Sale Prospectus.
(i) 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 (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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 generally accepted accounting principles, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that neither the Adviser nor any of the Adviser’s subsidiaries (collectively, the “Adviser Entity”) or 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, 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 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Adviser Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider Bank to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider Bank as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.or
Appears in 1 contract
Samples: Financial Warranty Agreement (Pioneer Principal Preservation Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider Insurer to enter into this Agreement and to issue the Financial WarrantyPolicy, the Adviser hereby represents and warrants to the Warranty Provider Insurer as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it the Adviser is a party does 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, revenues except where such violation or Lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All There has been no event, condition, action or omission since the Adviser's financial statements for the fiscal year ended December 31, 2001 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions which have been specifically disclosed in writing to the Insurer.
(g) The most recent balance sheets of the Adviser, commencing with the fiscal year ended December 31, 2001, and the related statements of earnings of the Adviser, have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the Adviser as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Smith Barney Trust Ii)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider each Underwriter as follows, on and as of the effective date hereof:
(a) The Adviser (i) has been duly formed and is a limited partnership duly organized, validly existing and in good standing as a [________ under the laws of the State of Delaware____], (ii) has the with full [corporate] power and authority to own own, lease and operate its assets properties and to transact conduct its business as described in the business in which it is engagedProspectus, (iii) and is duly qualified to do business as a foreign [corporation] and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business which requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the Adviser.
(b) The Adviser has is duly registered as an investment adviser under the power Advisers Act and authority to executeis not prohibited by the Advisers Act, deliver the 1940 Act, the Advisers Act Rules and perform Regulations or the Transaction Documents 1940 Act Rules and Regulations from acting for the Fund under the Fund Agreements to which it is a party as contemplated by the Prospectus.
(c) The Adviser has full power and has taken all necessary action required by applicable Requirements of Law authority to authorize enter into this Agreement, and 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 is required in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser of the Transaction Documents Fund Agreements to which it is a party, except for such consentsthe execution and delivery of, authorizationsand the performance by the Adviser of its obligations under, filings or acts this Agreement, and the absence of Fund Agreements to which would not it is a party, have an Adverse Effect in respect been duly and validly authorized by the Adviser; and this Agreement and the Fund Agreements to which it is a party, have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser. , enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) 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 and the Fund Agreements to which it is a party.
(e) The description of the Adviser and its business, and the statements attributable to the Adviser, in the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property is pending or, to the best knowledge of the Adviser, threatened that (i) could reasonably be expected to have a material adverse effect on the ability of the Adviser to fulfill its obligations hereunder or under 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), 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 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.
(g) 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 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 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; 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 has been, and each other Transaction Document the Fund Agreements to which the Adviser is a party will be, duly executed and delivered on behalf comply in all material respects with all applicable provisions of the Adviser. This 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 Fund Agreements by the Adviser which is a party thereto, 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.
(k) Neither the execution, delivery or performance of this Agreement constitutes, and each other Transaction Document or any of the Fund Agreements to which the Adviser is a party, when executed and delivered, will constitute, a legal, valid and binding obligation of nor the Adviser enforceable against it in accordance with its terms, except as enforceability may be limited consummation by applicable bankruptcy, insolvency, reorganization, moratorium the Fund 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of the 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 it the Adviser is a party does not and or by which it or any of its properties may be bound or (iii) violates or will not violate any Requirement of Law material statute, law, regulation or Contractual Obligation of filing or judgment, injunction, order or decree applicable to the Adviser and or any of its properties or will not result in, or require, in the creation or imposition of any Lien on 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 its propertythe property or assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus, assets the Adviser has not taken and nor will it take, directly or revenuesindirectly, except where such violation any action designed to or Lien would not which should reasonably be expected to have an Adverse Effect cause or result in respect or which will constitute, stabilization or manipulation of the Adviser. The price of the any security of the Fund in violation of federal securities laws and the Adviser is not in violation aware of any Contractual Obligation, except where such violation would not reasonably action taken or to be expected to have an Adverse Effect in respect taken by any affiliates of the Adviser.
(dm) No litigation, proceeding In the event that the Fund or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; 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 is not prohibited 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 any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules persons other than qualified broker-dealers and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Global Real Estate Income Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to Ladenburg as of the Warranty Provider as follows, on date hereof and as of the effective date hereofeach Representation Date on which a certificate is required to be delivered pursuant to Section 8(p) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agree with Ladenburg, as follows:
(ai) The Adviser (i) has been duly formed and is a limited partnership duly organized, validly existing and as a corporation in good standing under the laws of the State of DelawareFlorida, (ii) has with the corporate power and authority to own its assets property and to transact conduct its business as described in the business in Prospectus and enter into this Agreement and the Company Agreements to which it is engageda party, (iii) and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Adviser (an “Adviser Material Adverse Effect in respect Effect”). The Adviser has no subsidiaries.
(ii) 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 Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Adviser, threatened by the Commission.
(iii) Each of this Agreement and the Company Agreements to which the Adviser is a party has been duly authorized by the Adviser. Each Company Agreement to which the Adviser is a party complies with the applicable provisions of the Securities Act, the Investment Company Act and the Advisers Act. Each Company Agreement to which the Adviser is a party has been duly executed and delivered by the Adviser and (ivassuming the due and valid authorization, execution and delivery by the other parties thereto) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect represents a valid and binding agreement of the Adviser, enforceable against the Adviser, in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(biv) The execution and delivery by the Adviser has of, and the power performance by the Adviser of its obligations under, this Agreement and authority to execute, deliver and perform the Transaction Documents each Company Agreement 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 Adviser is a party. Except as has been obtained, no consent does not conflict with or authorization will conflict with, result in, or constitute a violation, breach of, filing withdefault under, (x) the articles of incorporation of the Adviser (y) any agreement, indenture, note, bond, license, lease or other act by instrument or in obligation binding upon the Adviser that is material to the Adviser or (z) any law, rule or regulation applicable to the Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser whether foreign or domestic; except, with respect ofto clauses (y) or (z), any Government Authority contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is required made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the executionoffer or sale of the Shares in such jurisdiction by Ladenburg.
(v) No consent, deliveryapproval, performanceauthorization, validity order or enforceability permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by or against the Adviser for the performance by the Adviser of the Transaction Documents its obligations under this Agreement or any Company Agreement to which it is a party, except for such consentsas have been obtained and as may be required by (i) the Securities Act, authorizationsthe Investment Company Act, filings the Advisers Act or acts the absence Exchange Act, (ii) the rules and regulations of the FINRA or Nasdaq, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would not have neither (i) an Adviser Material Adverse Effect in respect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(vi) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser. This Agreement has been, and each other Transaction Document threatened to which the Adviser is a party will be, duly executed and delivered on behalf or to which any of the Adviser. This Agreement constitutes, and each other Transaction Document to which 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 party, when executed and delivered, will constitute, a legal, valid and binding obligation material adverse effect on the Adviser or on the power or ability of the Adviser enforceable against it 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 accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium the Registration Statement or similar laws affecting the enforcement of creditors' rights generally Prospectus and by general equitable principles (whether enforcement is sought by proceedings in equity or at law)are not so described.
(cvii) The executionAdviser has all necessary consents, delivery authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(viii) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and by the Adviser of the Transaction Documents this Agreement and each Company Agreement to which it is a party.
(ix) The Investment Advisory Agreement is in full force and effect and neither the Adviser nor, to the knowledge of the Adviser, any other party does not to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Adviser under such document.
(x) All information furnished by the Adviser for use in the Registration Statement and will not violate any Requirement of Law or Contractual Obligation the Prospectus, including, without limitation, the description of the Adviser does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such information not misleading (in the case of the Prospectus, in light of the circumstances under which such information is provided).
(xi) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser from that set forth in the Prospectus, and will not there have been no transactions entered into by the Adviser which are material to the Adviser other than those in the ordinary course of its business or as described in the Prospectus.
(xii) Neither the Adviser nor any of its affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or 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 would not which could reasonably be expected to have an Adverse Effect in respect constitute, cause or result in, the stabilization or manipulation of the Adviser. The Adviser is not in violation price of any Contractual Obligation, except where such violation would not reasonably be expected security to have an Adverse Effect in respect facilitate the sale or resale of the AdviserShares.
(dxiii) No litigationThe operations of the Adviser are and have been conducted at all times in compliance with applicable Money Laundering laws and no action, suit or proceeding or investigation of by or before any court or governmental agency, authority or body or any arbitrator or Governmental Authority involving the Adviser with respect to the Money Laundering laws is pending or, to the knowledge of the Adviser's knowledge, threatened threatened.
(xiv) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) asserting transactions effectuated by it under the invalidity Investment Advisory Agreement are executed in accordance with its management’s general or unenforceability of any of the Transaction Documents, specific authorization and (ii) seeking access to prevent the consummation of any of the transactions contemplated by the Transaction Documents Company’s assets is permitted only in accordance with its management’s general or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviserspecific authorization.
(exv) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished Any certificate signed by or on behalf of the Adviser and delivered to the Warranty Provider (whether prepared by the Adviser Ladenburg or any other Person) counsel for purposes of or Ladenburg in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby is true Agreement shall be deemed to be a representation and accurate in all material respects on warranty by the date Adviser 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofmatters covered therein to Ladenburg.
Appears in 1 contract
Samples: Equity Distribution Agreement (Herzfeld Caribbean Basin Fund Inc)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 not prohibited by any provision a valid and binding obligation of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with its terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and 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 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 from that set forth in the Time of Sale Prospectus..
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, 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 proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to perform its obligations under this Agreement or to consummate the Warranty Provider (whether prepared transactions contemplated by the Adviser Time of Sale Prospectus or any other Person(ii) for purposes of that are required to be described in the Registration Statement or in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby is true the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider Insurer as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of DelawareWashington, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform its obligations under 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 obtainedobtained or would not reasonably be expected to have an Adverse Effect, 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of its obligations under the Transaction Documents to which it the Adviser is a party does 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 revenuesAdviser, except where such violation or Lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened by or against the
(i) asserting the invalidity or unenforceability of any of the Transaction DocumentsDocuments to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Transaction Documents to which it is a party, or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and and, to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All To the best of the Adviser's knowledge, there has been no event, condition, action or omission since the Adviser's financial statements for the fiscal year ended December 31, 2001 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions which have been specifically disclosed in writing to the Insurer.
(g) The most recent balance sheets of the Adviser, for the fiscal year ended December 31, 2001, and the related statements of earnings of the Adviser, have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the Adviser as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or prepared by any other Person) for purposes of or in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby Agreement 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 to make such information in the context in which it is furnished not misleadingmisleading in any material respect.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents to which it is a party illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Russell Frank Investment Co)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to Ladenburg as of the Warranty Provider as follows, on date hereof and as of the effective date hereofeach Representation Date on which a certificate is required to be delivered pursuant to Section 8(p) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with Ladenburg, as follows:
(ai) The Adviser (i) has been duly formed and is validly existing as a limited partnership duly organized, validly existing and liability company in good standing under the laws of the State of Delaware, (ii) has with the corporate power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Prospectus and enter into this Agreement and the Company Agreements and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Adviser (an “Adviser Material Adverse Effect”). The Adviser has no subsidiaries.
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act, and (iv) is in compliance with all Requirements not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated by the Registration Statement and the Prospectus, and no order of Lawsuspension or revocation of such registration has been issued or proceedings therefor initiated or, except where non-compliance would not have an Adverse Effect in respect to the knowledge of the Adviser, threatened by the Commission.
(biii) The Adviser has Each of this Agreement and the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document Company Agreements to which the Adviser is a party, when has been duly authorized by the Adviser. Each Company Agreement to which the Adviser is a party, complies with the applicable provisions of the Securities Act, the Investment Company Act and the Advisers Act. Each Company Agreement to which the Adviser is a party has been duly executed and delivereddelivered by the Adviser and (assuming the due and valid authorization, will constitute, execution and delivery by the other parties thereto) represents a legal, valid and binding obligation agreement of the Adviser Adviser, enforceable against it the Adviser, in accordance with its terms, except (a) as enforceability rights to indemnity and contribution may be limited by applicable federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium receivership, moratorium, and other laws relating to or similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is sought by proceedings considered in a proceeding in equity or at law), and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(civ) The executionexecution and delivery by the Adviser of, delivery and the performance by the Adviser of the Transaction Documents to which it is a party its obligations under, this Agreement and each Company Agreement does not and conflict with or will not violate any Requirement of Law or Contractual Obligation of the Adviser and will not conflict with, result in, or requireconstitute a violation, breach of, default under, (x) the limited liability company operating agreement of the Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Adviser that is material to the Adviser or (z) any law, rule or regulation applicable to the Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Notes in such jurisdiction by Ladenburg.
(v) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Adviser for the performance by the Adviser of its obligations under this Agreement or the Company Agreements, except such as have been obtained and as may be required by (i) the Securities Act, the creation Investment Company Act, the Advisers Act or imposition the Exchange Act, (ii) the rules and regulations of any Lien the FINRA or the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Notes or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(vi) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened to which the Adviser is a party or to which any of its propertyproperties is subject (i) other than proceedings accurately described in all material respects in the Prospectus or 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 and are not so described.
(vii) The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets or revenuesand to conduct its business in the manner described in the Prospectus, except where such violation to the extent that the failure to obtain, declare or Lien file the foregoing would not result in an Adviser Material Adverse Effect.
(viii) The Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and by this Agreement and the Company Agreements.
(ix) The Investment Advisory Agreement is in full force and effect and neither the Adviser nor, to the knowledge of the Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Adviser under such document.
(x) All information furnished by the Adviser for use in the Registration Statement and the Prospectus, including, without limitation, the description of the Adviser does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such information not misleading (in the case of the Prospectus, in light of the circumstances under which such information is provided).
(xi) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Adviser from that set forth in the Prospectus, and there have been no transactions entered into by the Adviser which are material to the Adviser other than those in the ordinary course of its business or as described in the Prospectus.
(xii) Neither the Adviser nor any of its affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to have an Adverse Effect in respect constitute, cause or result in, the stabilization or manipulation of the Adviser. The Adviser is not in violation price of any Contractual Obligation, except where such violation would not reasonably be expected security to have an Adverse Effect in respect facilitate the sale or resale of the AdviserNotes.
(dxiii) No litigationThe operations of the Adviser are and have been conducted at all times in compliance with applicable Money Laundering laws and no action, suit or proceeding or investigation of by or before any court or governmental agency, authority or body or any arbitrator or Governmental Authority involving the Adviser with respect to the Money Laundering laws is pending or, to the knowledge of the Adviser's knowledge, threatened threatened.
(xiv) The Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) asserting transactions effectuated by it under the invalidity Investment Advisory Agreement are executed in accordance with its management’s general or unenforceability of any of the Transaction Documents, specific authorization and (ii) seeking access to prevent the consummation of any of the transactions contemplated by the Transaction Documents Company’s assets is permitted only in accordance with its management’s general or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviserspecific authorization.
(exv) The Adviser is duly registered with the Commission as an investment adviser maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions for which it has bookkeeping and record keeping responsibility for under the Investment Advisers Act; Administration Agreement are recorded as necessary to permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished Company’s assets. Any certificate signed by or on behalf of the Adviser and delivered to the Warranty Provider (whether prepared by the Adviser Ladenburg or any other Person) counsel for purposes of or Ladenburg in connection with this Agreement, any Transaction Document or any transaction contemplated hereby or thereby is true Agreement shall be deemed to be a representation and accurate in all material respects on warranty by the date Adviser 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofmatters covered therein to Ladenburg.
Appears in 1 contract
Samples: Debt Distribution Agreement (Saratoga Investment Corp.)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of DelawareColorado, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would could not reasonably be expected to have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for other than such consents, authorizations, filings or acts the absence of which would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would could reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, knowledge there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the 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 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation regulation, order or order, in each case applicable to the Adviser, publicly available interpretation thereof by a Government Authority has been enacted or deemed applicable by any Government Authority which that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofthereof 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 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 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.
Appears in 1 contract
Samples: Financial Warranty Agreement (Oppenheimer Principal Protected Trust)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsPartnership that, on and as of the effective date hereofEffective Date:
(a) The Adviser (i) has been duly formed and is a limited partnership duly organized, validly existing and in good standing as a corporation under the laws of the State of Delaware, (ii) has the Delaware with full power and authority to own its assets enter into and perform this Agreement and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure as required pursuant to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the Adviserthis Agreement.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, been duly and each other Transaction Document to which the Adviser is a party will be, duly validly executed and delivered by the Adviser and, assuming the due and valid authorization, execution and delivery on behalf of the Adviser. This Agreement constitutesPartnership, and each other Transaction Document to which the Adviser is constitutes a party, when executed and delivered, will constitute, a legal, valid and binding obligation agreement of the Adviser Adviser, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable (a) any bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors, rights, (b) general equity principles, (c) the enforcement law of creditors' rights generally fraudulent conveyance, (d) public policy and (e) judicial imposition of any implied covenant of good faith and fair dealing. The person signing this Agreement on behalf of the Adviser has been duly authorized by general equitable principles (whether enforcement is sought by proceedings in equity or at law)the Adviser to do so.
(c) The executionAdviser is not in default in the performance or observance of any obligation, delivery and performance by the Adviser of the Transaction Documents agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party does or by which it or any of its properties is bound which, in the aggregate, would have a material adverse effect on the Adviser; the execution by the Adviser of this Agreement and the performance by the Adviser of its obligations under this Agreement do not and will not violate result in any Requirement of Law or Contractual Obligation violation of the Adviser certificate of incorporation of the Adviser, and do not and will not result inconflict with, or requireresult in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien on lien, charge or encumbrance upon any property or assets of the Adviser under, any indenture, mortgage, loan agreement, note lease or other agreement or instrument to which the Adviser is a party or by which any of its propertyproperties is bound or any existing applicable law, assets rule, regulation, judgment, order or revenuesdecree of any governmental instrumentality or court, except where such violation domestic or Lien would not reasonably be expected foreign, having jurisdiction over the Adviser or any of its properties. There is no litigation, investigation or other proceeding pending or, to have an Adverse Effect in respect the knowledge of the Adviser. The , threatened against the Adviser is not in violation or any of any Contractual Obligationits Affiliates which, except where such violation if adversely determined, would not reasonably be expected to have an Adverse Effect in respect materially adversely affect the business or financial condition of the AdviserAdviser or would impair the ability of the Adviser to perform its obligations hereunder.
(d) No litigationThe Adviser has obtained all authorizations, proceeding or investigation consent, approvals, licenses and clearances of or before all courts, governmental agencies and authorities, and any arbitrator or Governmental Authority is pending orother Person, if any, required for the Adviser to the Adviser's knowledge, threatened (i) asserting the invalidity or unenforceability of any of the Transaction Documents, (ii) seeking enter into this Agreement and to prevent the consummation of any of the transactions contemplated by the Transaction Documents or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviserperform its obligations hereunder.
(e) The Adviser is duly registered with the U.S. Securities and Exchange Commission as an investment adviser under the Investment Advisers Act; and to the best Act of the Adviser's knowledge1940, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunderamended.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Investment Management Agreement (CIM Commercial Trust Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of DelawareColorado, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would could not reasonably be expected to have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform its obligations under 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, except for other than such consents, authorizations, filings or acts the absence of which would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No Other than the proceedings disclosed to the Warranty Provider in the Letter Agreement, no litigation, proceeding or investigation of or before any arbitrator or Governmental 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 or Documents, (iii) seeking any determination or ruling that would could reasonably be expected to have an Adverse Effect in respect or (iv) asserting any violation by the Adviser or the Fund of the AdviserInvestment 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.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, knowledge there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the 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 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation, order or publicly available interpretation of any such statute, rule, regulation or order, in each case applicable to the Adviser, order by a Government Authority has been enacted or deemed applicable by any Government Authority which that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofthereof 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 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 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 shares of each class of the Underlying Fund are duly authorized and validly issued and are outstanding, fully paid and nonassessable and conform in all respects to the description thereof contained in the registration statement with respect to such shares.
(j) 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. 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.
(k) The Adviser is not aware of any action or inaction by it or any of the registered investment companies for which it serves as investment advisor, administrator, manager or sponsor (including the Fund and the Underlying Fund, the "Xxxxxxxxxxx Advised Funds"), including by any officer, director, employee or agent of any such person, that would constitute a material violation of any statute, rule, regulation, No-Action Letter or Interpretive Release of the Commission, internal policy of the Adviser or any Xxxxxxxxxxx Advised Fund, or fiduciary responsibility, including by permitting or otherwise condoning (1) frequent trading activity by a shareholder of an Xxxxxxxxxxx Advised Fund that would be contrary to the published policy of the relevant Xxxxxxxxxxx Advised Fund or that would be disruptive to the management of portfolios which the Adviser advises, (2) late trading activity, or (3) selective disclosure of portfolio holdings except as otherwise disclosed in the applicable Xxxxxxxxxxx Advised Fund's registration statement.
(l) No Class of Shares of the Fund is authorized or scheduled to convert into Shares of any other Class of Shares of the Fund during the period after the Offering Period through and including the Maturity Date.
Appears in 1 contract
Samples: Financial Warranty Agreement (Oppenheimer Principal Protected Trust Iii)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as follows, on and as agrees with each of the effective date hereofUnderwriters that:
(a) The Adviser (i) has been duly formed, is validly existing as a limited partnership duly organized, validly existing and liability company in good standing under the laws of the State of Delaware, (ii) has the limited liability power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business, properties, management or personnel of the Adviser, whether or not arising from transactions in respect the ordinary course of business of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an “Adviser Material Adverse Effect in respect of the AdviserEffect”). The Adviser has no subsidiaries.
(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 Advisory Agreement as an investment adviser to the Fund as contemplated by the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the power knowledge of the Adviser, threatened by the Commission.
(c) Each of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Marketing and authority Structuring Fee Agreement between Xxxxxx Xxxxxxx & Co. Incorporated and the Adviser (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between Citigroup Global Markets Inc. and the Adviser (the “Citi Fee Agreement”), the Structuring Fee Agreement between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the Adviser (the “Xxxxxxx Xxxxx Fee Agreement”), the Structuring Fee Agreement between UBS Securities LLC and the Adviser (the “UBS Fee Agreement”) and the Structuring Fee Agreement between Xxxxx Fargo Securities, LLC and the Adviser (the “Xxxxx Fargo Fee Agreement,” and together with the Xxxxxx Xxxxxxx Fee Agreement, the Citi Fee Agreement, the Xxxxxxx Xxxxx Fee Agreement and the UBS Fee Agreement, the “Fee Agreements”) (this Agreement, the Investment Advisory Agreement, the Administration Agreement and the Fee Agreements are referred to executeherein, deliver collectively, as the “Adviser Agreements”) has been duly authorized, executed and perform delivered by the Transaction Documents to which it Adviser and complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Adviser Agreements, other than this Agreement, assuming due authorization, execution and delivery by the other parties thereto, is a party valid and has taken all necessary action binding agreement of the Adviser, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by equitable principles of general applicability.
(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 by-laws of the Adviser, (ii) any agreement or other instrument binding upon the Adviser or (iii) any provision of applicable law, 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 (ii) and (iii) above, where such contravention does or 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 required by the Acts, the Advisers Act, the Exchange Act or the applicable Requirements of Law to authorize Rules and Regulations, or by the execution, delivery and performance securities or Blue Sky laws 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 is required various states and foreign jurisdictions in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser offer and sale of the Transaction Documents Shares, or such as which the failure to which it is a party, except for such consents, authorizations, filings or acts the absence of which obtain would not neither have (i) an Adviser Material Adverse Effect in respect 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. This Agreement has been, and each other Transaction Document threatened to which the Adviser is a party will be, duly executed and delivered on behalf or to which any of the Adviser. This Agreement constitutes, and each other Transaction Document to which properties of the Adviser is a partysubject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, when executed and delivered, will constitute, a legal, valid and binding obligation or an adverse effect on the power or ability of the Adviser enforceable against it in accordance with to perform its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium obligations under this Agreement 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (i) asserting the invalidity or unenforceability of any of the Transaction Documents, (ii) seeking to prevent the consummation of any of consummate the transactions contemplated by the Transaction Documents Time of Sale Prospectus or (iiiii) seeking any determination that are required to be described in the Registration Statement or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers ActProspectus 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 best of the Adviser's knowledge, there does Registration Statement that are not exist any proceeding described or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting filed as an investment adviser of the Fund as contemplated hereunderrequired.
(f) All factual information prepared The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and furnished 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 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 by the Adviser Agreements.
(h) 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 on behalf the giving of notice or both would constitute a default thereunder, except to the extent that such default would not have an Adviser Material Adverse Effect.
(i) The description of the Adviser and its business and the statements attributable to the Warranty Provider (whether prepared by Adviser in the Adviser or any other Person) for purposes Registration Statement, the Time of or in connection with this AgreementSale Prospectus and Prospectus, any Transaction Document or any transaction contemplated hereby or thereby is true including, without limitation, the description of the Adviser, does not, and accurate in all material respects on the date as Closing Date will not, contain any untrue statement of which such information is dated a material fact or certified and such information taken as a whole does not omit to state any material fact necessary to make such information in the context in which it is furnished not misleading.
(gj) To There has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the best 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 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 or 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 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 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.
(l) The operations of the Adviser and its subsidiaries 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 Adviser or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser's knowledge, no statutethreatened.
(i) The Adviser represents that neither the Adviser nor any of its subsidiaries, rulenor any director, regulation officer, or orderemployee thereof, in each case applicable nor, to the Adviser’s knowledge, has been enacted any agent, affiliate or deemed applicable representative of the Adviser or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by a 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 Syria).
(ii) The Adviser 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 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 Government Authority which would make Adviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Adviser Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Blackstone / GSO Senior Floating Rate Term Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of DelawareColorado, (ii) has the power and authority to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Warranty Agreement (Oppenheimer Principal Protected Trust Ii)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 Securities.
(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 from that set forth in the Time of Sale Prospectus.
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, 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 proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(r) The operations of the Adviser Entity are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or government agency, authority or body or any arbitrator involving the Transaction Documents illegal or otherwise prevent Adviser with respect to the consummation thereofAnti-Money Laundering Laws is pending or, to the best knowledge of the Adviser, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, as applicable, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 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 from that set forth in the Time of Sale Prospectus.
(i) 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 (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to the Warranty Provider (whether prepared by the Adviser or any other Person) for purposes of or in connection with perform its obligations under this Agreement, any Transaction Document the Investment Management Agreement or any transaction the Administration Agreement or to consummate the transactions contemplated hereby by the Time of Sale Prospectus or thereby is true (ii) that are required to be described in the Registration Statement or the Prospectus and accurate in all material respects on are not so described.
(j) Subsequent to the date respective dates as of which such information is dated given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Adviser has not incurred any material liability or certified 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 information taken 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a whole does not material fact or omit to state any a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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 generally accepted accounting principles, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that neither the Adviser nor any of the Adviser’s subsidiaries (collectively, the “Adviser Entity”) or 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, 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 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Adviser Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Adviser. To induce the Warranty Provider Insurer to enter into this Agreement and to issue the Financial WarrantyPolicy, the Adviser hereby represents and warrants to the Warranty Provider Insurer as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it the Adviser is a party does 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, revenues except where such violation or Lien lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an and Adverse Effect in respect of the AdviserEffect.
(d) No Except as set forth on Schedule 2 no litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All There has been no event, condition, action or omission since the Adviser's financial statements for the fiscal year ended December 31, 2000 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions which have been specifically disclosed in writing to the Insurer.
(g) The most recent balance sheets of the Adviser, commencing with the fiscal year ended December 31, 2000, and the related statements of earnings of the Adviser, have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the Adviser as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Smith Barney Trust Ii)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as follows, on and as agrees with each of the effective date hereofUnderwriters that:
(a) The Adviser (i) has been duly formed, is validly existing as a limited partnership duly organized, validly existing and liability company in good standing under the laws of the State of Delaware, (ii) has the limited liability power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business, properties, management or personnel of the Adviser, whether or not arising from transactions in respect the ordinary course of business of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an “Adviser Material Adverse Effect in respect of the AdviserEffect”). The Adviser has no subsidiaries.
(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 Advisory Agreement as an investment adviser to the Fund as contemplated by the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the power knowledge of the Adviser, threatened by the Commission.
(c) Each of this Agreement, the Investment Advisory Agreement, the Distribution Agreement, the Chief Compliance Officer Support Services Agreement (the “CCO Support Agreement”) between the Administrator and authority the Adviser, the Structuring Fee Agreement and the Syndication Fee Agreement between Xxxxxx Xxxxxxx & Co. LLC and the Adviser (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between Citigroup Global Markets Inc. and the Adviser (the “Citi Fee Agreement”), the Structuring Fee Agreement between Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the Adviser (the “Merrill Fee Agreement”), the Structuring Fee Agreement between UBS Securities LLC and the Adviser (the “UBS Fee Agreement”), the Structuring Fee Agreement between Xxxxx Fargo Securities, LLC and the Adviser (the “Xxxxx Fee Agreement”)[, the Structuring Fee Agreement between RBC Capital Markets, LLC and the Adviser (the “RBC Fee Agreement”) and the Structuring Fee Agreement between Barclays Capital Inc. and the Adviser (the “Barclays Fee Agreement,” and together with the Xxxxxx Xxxxxxx Fee Agreements, the Citi Fee Agreement, the Merrill Fee Agreement, the UBS Fee Agreement, the Xxxxx Fee Agreement and the RBC Fee Agreement,] the “Fee Agreements”) (this Agreement, the Investment Advisory Agreement, the Distribution Agreement, the CCO Support Agreement and the Fee Agreements are referred to executeherein, deliver collectively, as the “Adviser Agreements”) has been duly authorized, executed and perform delivered by the Transaction Documents to which it Adviser and complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Adviser Agreements, other than this Agreement, assuming due authorization, execution and delivery by the other parties thereto, is a party valid and has taken all necessary action binding agreement of the Adviser, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by equitable principles of general applicability.
(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, the operating agreement or by-laws of the Adviser, (ii) any agreement or other instrument binding upon the Adviser or (iii) any provision of applicable law, 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 (ii) and (iii) above, where such contravention does or 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 required by the Acts, the Advisers Act, the Exchange Act or the applicable Requirements of Law to authorize Rules and Regulations, or by the execution, delivery and performance securities or Blue Sky laws 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 is required various states and foreign jurisdictions in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser offer and sale of the Transaction Documents Shares, or such as which the failure to which it is a party, except for such consents, authorizations, filings or acts the absence of which obtain would not neither have (i) an Adviser Material Adverse Effect in respect 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. This Agreement has been, and each other Transaction Document threatened to which the Adviser is a party will be, duly executed and delivered on behalf or to which any of the Adviser. This Agreement constitutes, and each other Transaction Document to which properties of the Adviser is a party, when executed subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and delivered, will constitute, a legal, valid and binding obligation proceedings that would not have an Adviser Material Adverse Effect or an adverse effect on the power or ability of the Adviser enforceable against it in accordance with to perform its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium obligations under this Agreement 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (i) asserting the invalidity or unenforceability of any of the Transaction Documents, (ii) seeking to prevent the consummation of any of consummate the transactions contemplated by the Transaction Documents Time of Sale Prospectus or (iiiii) seeking any determination that are required to be described in the Registration Statement, the Time of Sale Prospectus or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers ActProspectus 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 exhibits to the best of the Adviser's knowledge, there does Registration Statement that are not exist any proceeding described or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting filed as an investment adviser of the Fund as contemplated hereunderrequired.
(f) All factual information prepared The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and furnished 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 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 by the Adviser Agreements.
(h) 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 on behalf the giving of notice or both would constitute a default thereunder.
(i) The description of the Adviser and its business and the statements attributable to the Warranty Provider (whether prepared by Adviser in the Adviser or any other Person) for purposes Registration Statement, the Time of or in connection with this AgreementSale Prospectus and Prospectus do not, any Transaction Document or any transaction contemplated hereby or thereby is true and accurate in all material respects on the date as Closing Date will not, contain any untrue statement of which such information is dated a material fact or certified and such information taken as a whole does not omit to state any material fact necessary to make such information in the context in which it is furnished not misleading.
(gj) To There has not occurred any material adverse change, or any development reasonably likely to cause a material adverse change, in or affecting the best 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 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 Adviser maintains a system of internal controls designed 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 Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) Neither the Adviser nor any of its subsidiaries nor any director, officer, or employee of the Advisor, nor, to the Adviser’s knowledge, any affiliates of the Advisor nor 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 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.
(m) The operations of the Adviser and its subsidiaries 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 Adviser or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Adviser's knowledge, no statutethreatened.
(i) The Adviser represents that neither the Adviser nor any of its subsidiaries, rulenor any director, regulation officer, or orderemployee thereof, in each case applicable nor, to the Adviser’s knowledge, has been enacted any agent, affiliate or deemed applicable representative of the Adviser or any of its subsidiaries, 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 Syria).
(ii) The Adviser 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 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 Government Authority which would make Adviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) 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 contemplated by with any Adviser Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Blackstone / GSO Strategic Credit Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider Insurer to enter into this Agreement and to issue the Financial WarrantyPolicy, the Adviser hereby represents and warrants to the Warranty Provider Insurer as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power power, authority and authority legal right to execute, deliver and perform its obligations under 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 obtainedobtained or as are not material to the enforceability or validity of the Transaction Documents, 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it the Adviser is a party does 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, revenues except where such violation or Lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All Except as specifically disclosed in writing to the Insurer, to the best of the Adviser's knowledge there has been no event, condition, action or omission since the audited consolidated financial statements of the Parent Company for the fiscal year ended December 31, 2001 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions which have been specifically disclosed in writing to the Insurer.
(g) Except as specifically disclosed in writing to the Insurer, the most recent balance sheets of the Parent Company, commencing with the fiscal year ended December 31, 2001, and the related statements of earnings of the Adviser's parent company, have been prepared in accordance with the standards of the Commissione Nazionale per le Societa e la Borsa (CONSOB) and present fairly in all material respects the financial condition of the Adviser's parent company as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Pioneer Protected Principal Trust)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority authority, and the legal right, to execute, deliver and perform 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the 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 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Warranty Agreement (Pioneer Protected Principal Plus Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider Insurer to enter into this Agreement and to issue the Financial WarrantyPolicy, the Adviser hereby represents and warrants to the Warranty Provider Insurer as follows, on and as of the effective date hereofEffective Date and the Inception Date:
(a) The Adviser (i) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, qualification except where the failure to so qualify would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, Law except where non-compliance would not have an Adverse Effect in respect of the AdviserEffect.
(b) The Adviser has the power and authority to execute, deliver and perform its obligations under 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 have been obtainedobtained or as are not material to the enforceability or validity of the Transaction Documents, 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of its obligations under the Transaction Documents to which it the Adviser is a party does 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, revenues except where such violation or Lien would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, knowledge there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunder.
(f) All There has been no event, condition, action or omission with respect to the asset management segment of the Adviser's parent company since the financial statements of the Adviser's parent company for the fiscal year ended December 31, 2001 which were furnished to the Insurer which would reasonably be expected to have an Adverse Effect, other than such events, conditions, actions or omissions with respect to the asset management segment of the Adviser's parent company which have been specifically disclosed in writing to the Insurer.
(g) The most recent balance sheets of the Adviser's parent company, commencing with the fiscal year ended December 31, 2001, and the related statements of earnings of the Adviser's parent company, have been prepared in accordance with GAAP and present fairly in all material respects the financial condition of the asset management segment of the Adviser's parent company as at the date thereof and the results of its operations for the period then ended except for omissions that would not have an Adverse Effect.
(h) To the best of the Adviser's knowledge, all factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider Insurer (whether prepared by the Adviser or any other Person) for purposes of or in connection with this Agreement, any 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 to make such information in the context in which it is furnished not misleading.
(gi) To the best of the Adviser's knowledge, no statute, rule, regulation or order, in each case applicable to the Adviser, order has been enacted or deemed applicable by any Government Authority which would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereof.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Merrill Lynch Principal Protected Trust)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to each of the Warranty Provider as follows, on and Underwriters as of the effective date hereofhereof that:
(a) The Adviser (i) has been duly formed, is validly existing as a limited partnership duly organized, validly existing and liability company in good standing under the laws of the State jurisdiction of Delawareits incorporation, (ii) has the corporate power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of a material adverse effect on the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an “Adviser Material Adverse Effect in respect of the AdviserEffect”). The Adviser has no subsidiaries.
(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 Advisory Agreement as an investment adviser to the Fund as contemplated by the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the power knowledge of the Adviser, threatened by the Commission.
(c) This Agreement, the Investment Advisory Agreement and authority the Sub-Advisory Agreement (collectively, the “Guggenheim Agreements”) have been duly authorized, executed and delivered by the Adviser.
(d) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under the Guggenheim Agreements will not contravene (x) the operating agreement or by-laws of the Adviser, (y) any agreement or other instrument binding upon the Adviser that is material to executethe Adviser or (z) any provision of applicable law or any judgment, deliver order or decree of any governmental body, agency or court having jurisdiction over the Adviser, whether foreign or domestic, except, in the case of (y) and perform (z) 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 required for the Transaction Documents to which it is a party performance by the Adviser of its obligations under the Guggenheim Agreements, except such as have been obtained and has taken all necessary action as may be required by the Acts, the Advisers Act, the Exchange Act or the applicable Requirements of Law to authorize Rules and Regulations, or by the execution, delivery and performance securities or Blue Sky laws 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 is required various states and foreign jurisdictions in connection with the execution, delivery, performance, validity or enforceability by or against the Adviser offer and sale of the Transaction Documents to which it is a party, except for Shares or such consents, authorizations, filings or acts the absence of which as would not have an Adviser Material Adverse Effect in respect or an adverse effect on any Underwriter.
(e) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser. This Agreement has been, and each other Transaction Document threatened to which the Adviser is a party will be, duly executed and delivered on behalf or to which any of the Adviser. This Agreement constitutes, and each other Transaction Document to which properties of the Adviser is a partysubject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, when executed and delivered, will constitute, a legal, valid and binding obligation or on the power or ability of the Adviser enforceable against it in accordance with to perform its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium obligations under the Guggenheim Agreements 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (i) asserting the invalidity or unenforceability of any of the Transaction Documents, (ii) seeking to prevent the consummation of any of consummate the transactions contemplated by the Transaction Documents Time of Sale Prospectus or (iiiii) seeking any determination or ruling that would reasonably are required to be expected to have an Adverse Effect described in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act; and to the best of the Adviser's knowledge, there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act Registration Statement or the Investment Company Act, or the respective rules Prospectus and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunderare not so described.
(f) All factual information prepared The Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and furnished 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 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 by or on behalf the Investment Advisory Agreement.
(h) The Investment Advisory Agreement and the Sub-Advisory Agreement are in full force and effect and neither the Adviser nor, to the knowledge of the Adviser Adviser, any other party to the Warranty Provider (whether prepared Investment Advisory Agreement or 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 by the Adviser or any other Personunder such document.
(i) All information furnished by the Adviser for purposes use in the Registration Statement, the Time of or in connection with this AgreementSale Prospectus and Prospectus, any Transaction Document or any transaction contemplated hereby or thereby is true including, without limitation, the description of the Adviser, does not, and accurate in all material respects on the date as Closing Date will not, contain any untrue statement of which such information is dated a material fact or certified and such information taken as a whole does not omit to state any material fact necessary to make such information not misleading (in the context case of the Time of Sale Prospectus and Prospectus, in light of the circumstances under which it such information is furnished not misleadingprovided).
(gj) To There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the best condition, financial or otherwise, or in the earnings, business 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 directors, partners, managers or officers, on behalf of the Adviser's , nor, to the Adviser’s knowledge, no statuteany employee, rule, regulation agent or order, in each case applicable to representative of the Adviser, has been enacted taken or deemed 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 conducts its businesses in compliance with applicable anti-corruption laws, including the FCPA.
(l) The operations of the Adviser are conducted 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 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) The Adviser represents that neither the Adviser, any director or officer, nor, to the knowledge of the Adviser, any employee, agent or representative of the Adviser, is a Person that is, or is owned or controlled by a 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, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Adviser represents and covenants that it will not, directly or indirectly, use, or cause or direct 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:
(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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Adviser represents and covenants that for the past 5 years, it has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Fiduciary/Claymore MLP Opportunity Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as follows, on and as of the effective date hereof:Effective Date (for the avoidance of doubt, all references to “Transaction Documents” in this Section 6.1 shall refer to the Transaction Documents as they existed on the Effective Date):
(a) The Adviser (i) is a limited partnership corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the power and authority authority, and the legal right, to own its assets and to transact the business in which it is engaged, (iii) is duly qualified to do business and is in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would could not reasonably be expected to have an Adverse Effect in respect of the Adviser and Effect, (iv) is in compliance with all Requirements of Law, Law except where non-compliance would could not reasonably be expected to have an Adverse Effect and (v) with respect to the Fund, is in respect 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 authority, and the legal right, to execute, deliver and perform its obligations under 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, except for other than such consents, authorizations, filings or acts the absence of which would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. This The Original Agreement has been, and each other Transaction Document to which the Adviser is a party will be, has been duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Each Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect. The Adviser is not in violation of any Contractual Obligation, except where such violation would could not reasonably be expected to have an Adverse Effect in respect of the AdviserEffect.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Government Authority is pending or, to the Adviser's ’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 or Documents, (iii) seeking any determination or ruling that would could reasonably be expected to have an Adverse Effect Effect, except as previously disclosed in respect writing to the Warranty Provider or (iv) asserting any violation by the Adviser or the Fund of the AdviserInvestment 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 Investment Advisers Act; and to the best of the Adviser's knowledge, ’s knowledge there does not exist any proceeding or any facts or circumstances the existence of which could adversely affect the registration of the Adviser with the Commission; the Adviser is not prohibited by any provision of the Investment Advisers Act or the Investment Company Act, or the respective rules and regulations thereunder, from acting as an investment adviser of the Fund as contemplated hereunderhereunder and in the Registration Statement.
(f) All factual information prepared and furnished by or on behalf of the Adviser to the Warranty Provider and/or the Calculation Agent (whether prepared by the Adviser or any other Person) for purposes of or in connection with this the Original 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 to make such information in the context in which it is furnished not misleading.
(g) To the best of the Adviser's ’s knowledge, no statute, rule, regulation, order or publicly available interpretation of any such statute, rule, regulation or order, in each case applicable to the Adviser, order by a Government Authority has been enacted or deemed applicable by any Government Authority which that would make the transactions contemplated by the Transaction Documents illegal or otherwise prevent the consummation thereofthereof 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 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 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 the Original 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 Investment 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 the Original 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) MLBUSA is a third-party beneficiary of the Custodian Instruction Agreement.
Appears in 1 contract
Samples: Assignment, Consent and Amendment Agreement (DWS Target Fund)
Representations and Warranties of the Adviser. To induce the Warranty Provider to enter into this Agreement and to issue the Financial Warranty, the The Adviser hereby represents and warrants to the Warranty Provider as followsto, on and as agrees with, each of the effective date hereofUnderwriters that:
(a) The Adviser (i) is a limited partnership has been duly organized, is validly existing and as a limited liability company in good standing under the laws of the State jurisdiction of Delawareits organization, (ii) has the limited liability company power and authority to own its assets property and to transact conduct its business as described in the business in which it is engaged, (iii) Time of Sale Prospectus and is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have an Adverse Effect in respect of the Adviser and (iv) is in compliance with all Requirements of Law, except where non-compliance would not have an Adverse Effect in respect of a material adverse effect on the Adviser.
(b) The Adviser has the power and authority to execute, deliver and perform 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 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, except for such consents, authorizations, filings or acts the absence of which would not have an Adverse Effect in respect of the Adviser. This Agreement has been, and each other Transaction Document to which the Adviser is a party will be, duly executed and delivered on behalf of the Adviser. This Agreement constitutes, and each other Transaction Document to which the Adviser is a party, when executed and delivered, will constitute, 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).
(c) The execution, delivery and performance by the Adviser of the Transaction Documents to which it is a party does 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 would not reasonably be expected to have an Adverse Effect in respect of the Adviser. The Adviser is not in violation of any Contractual Obligation, except where such violation would not reasonably be expected to have an Adverse Effect in respect of the Adviser.
(d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or, to the Adviser's knowledge, threatened (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 or (iii) seeking any determination or ruling that would reasonably be expected to have an Adverse Effect in respect of the Adviser.
(e) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act or the Investment Advisers Act; and Company Act from acting under the Investment Management Agreement as an investment adviser to the best Company, as contemplated by the Time of Sale Prospectus and the Adviser's knowledge, there Prospectus. There does not exist any proceeding or or, to the Adviser’s knowledge, any facts or circumstances circumstances, the existence of which could lead to any proceeding which might adversely affect 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 and the Administration Agreement have each been duly authorized, executed and delivered by the Adviser is not prohibited by any provision and are valid and binding obligations of the Investment Advisers Act or Adviser, as applicable, enforceable against the Investment Company Act, or the respective rules and regulations thereunder, from acting Adviser in accordance with their terms.
(e) No person is serving as an officer, director or investment adviser of the Fund as contemplated hereunderCompany 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) All factual information prepared The Adviser has the financial resources available to it necessary for the performance of its services and furnished obligations as contemplated in the Time of Sale Prospectus and the Prospectus and under this Agreement, the Investment Management Agreement and the Administration Agreement, as applicable.
(g) The execution and delivery by the Adviser of, and the performance by the Adviser of its obligations under, this Agreement, the Investment Management Agreement and the Administration 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, the Investment Management Agreement or the Administration 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 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 from that set forth in the Time of Sale Prospectus.
(i) 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 (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have a material adverse effect on the Adviser or on behalf the power or ability of the Adviser to perform its obligations under this Agreement, the Warranty Provider Investment Management Agreement or the Administration Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (whether prepared ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(j) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus 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 in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(k) The Adviser possesses all certificates, authorizations and permits issued by the appropriate federal, state or 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 Adviser, except as described in the Time of Sale Prospectus.
(l) The description of the Adviser and the information on the other funds managed by the Adviser (including performance information) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus does not, and prior to the time of purchase will not, contain any untrue statement of a material fact or any other Person) for purposes of or in connection with this Agreement, any 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 a material fact necessary to make such information the statements therein, in the context light of the circumstances in which it is furnished they were made, not misleading.
(gm) To The Adviser has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the best Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser's knowledge.
(n) The Adviser 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, no statutepolicies 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 generally accepted accounting principles, ruleto calculate net asset value, regulation 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 orderspecific 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 aware that any executive, in each case applicable key employee or 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 been enacted taken or deemed 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) The Adviser represents that neither the Adviser nor any of the Adviser’s subsidiaries (collectively, the “Adviser Entity”) or 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, 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 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 Government Authority which would make Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Adviser Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions contemplated by with any Person, or in any country or territory, that at the Transaction Documents illegal time of the dealing or otherwise prevent transaction is or was the consummation thereofsubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Horizon Technology Finance Corp)
