Representations and Warranties of the Advisor. The Advisor represents, warrants and agrees that: (a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects. (b) The Advisor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing as would not have a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition (financial or otherwise) of the Advisor, or its ability to perform its obligations under 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 Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”). (c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations. (e) There is no action, suit, proceeding, 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 Advisor, threatened, against or affecting the Advisor that would reasonably likely result in an Advisor Material Adverse Effect. (A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package and the Prospectus, except (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effect. (g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus and the Advisory Agreements and Instruments. (h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect. (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effect. (j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. (k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 4 contracts
Samples: Underwriting Agreement (Winthrop Realty Trust), Underwriting Agreement (Winthrop Realty Trust), Underwriting Agreement (Winthrop Realty Trust)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto each of the Underwriters as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State The Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, its business requires such qualification; except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) Each Advisor Agreement has been duly authorized, executed and delivered by the assetsAdvisor, businessand constitutes a valid, operationslegal, earnings, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into each Advisor Agreement, each of the Company Agreements (to which the Advisor is a party) and the Additional Compensation Agreement.
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Common Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement and the Additional Compensation Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of each Advisor Agreement and the consummation of the transactions therein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Advisor Since the date as of which information is not prohibited given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Investment Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) Each Advisor Agreement complies in all material respects with all applicable provisions of the 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 2 contracts
Samples: Equity Underwriting Agreement (RMR F.I.R.E. Fund), Equity Underwriting Agreement (RMR Preferred Dividend Fund)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters that:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Disclosure Package and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Disclosure Package and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (w) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (x) prevent or materially interfere with consummation of the transactions contemplated hereby, (y) result in the delisting of shares of Common Stock from NASDAQ or (z) prevent the Notes from being listed on NASDAQ (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (w), (x), (y) and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respects.transaction or agreement not in the ordinary course of business;
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not Disclosure Package (i) have been duly authorized by all necessary corporate action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Prospectus and the Disclosure Package, except such as have already been obtained or made under the Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.from FINRA;
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect;
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement, the Prospectus or affecting the Advisor that would Disclosure Package (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Prospectus, except (1) such as have been already obtained and (2) suchRegistration Statement, the failure of which Prospectus or the Disclosure Package, including ordinary routine litigation incidental to have obtainedthe business, would could not reasonably be expected to have an Advisor Material Adverse Effect.;
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act and the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Prospectus and the Disclosure Package;
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business;
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes;
(k) Except as disclosed in the Disclosure Package and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with any of the Underwriters;
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus the Prospectus, this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Package and the Prospectus; the and
(m) The Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Advsior Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters as of the date hereof that:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and organized, is validly existing as a limited liability company and is in good standing under the laws of its jurisdiction of organization, has the State of Delaware and has all requisite power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus; Prospectus and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason the conduct of the its business or its ownership or leasing of property or the conduct of businessrequires such qualification, except where to the extent that the failure to be so to qualify qualified or to be in good standing as would could not (i) reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, properties, prospects Advisor’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), business prospects, earnings, business, operations or properties of the Advisor, whether or its ability to perform its obligations under any obligationnot arising from transactions in the ordinary course of business ((i) and (ii), agreement, covenant individually 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 Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the an “Advisor Material Adverse Effect”).
(b) The Advisor 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 as an investment adviser to the Trust as contemplated by the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Advisor, threatened by the Commission.
(c) This Each of this Agreement, the Management Agreement, the Fee Waiver Agreement, the Structuring Fee Agreement between the Advisor and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Advisor and BofA Securities, Inc. (the “BofA Fee Agreement”), the Structuring Fee Agreement between the Advisor and UBS Securities LLC (the “UBS Fee Agreement”), the Structuring Fee Agreement between the Advisor and Xxxxx Fargo Securities, LLC (the “Xxxxx Fee Agreement”), the Structuring Fee Agreement between the Advisor and Xxxxxxx Xxxxx & Associates, Inc. (the “RJ Fee Agreement”), the Fee Agreement between the Advisor and Ameriprise Financial Services, Inc. (the “Ameriprise Fee Agreement”), the Fee Agreement between the Advisor and Xxxxxxxxxxx & Co. Inc. (the “Oppenheimer Fee Agreement”), the Fee Agreement between the Advisor and RBC Capital Markets, LLC (the “RBC Fee Agreement”) and the Fee Agreement between the Advisor and Xxxxxx, Xxxxxxxx & Company, Incorporated (the “Stifel Fee Agreement”) (this Agreement, the Management Agreement, the Fee Waiver Agreement, the Xxxxxx Xxxxxxx Fee Agreement, the BofA Fee Agreement, the UBS Fee Agreement, the Xxxxx Fee Agreement, the RJ Fee Agreement, the Ameriprise Fee Agreement, the Xxxxxxxxxxx Fee Agreement, the RBC Fee Agreement and the Advisory Stifel Fee Agreement, are referred to herein, collectively, as the “Advisor Agreements”, and the Advisor Agreements, other than this Agreement, the Management Agreement (iand the Fee Waiver Agreement, are referred to herein collectively as the “Fee Agreements”) has been duly and validly authorized by the Advisorauthorized, (ii) has been duly and validly executed and delivered by the Advisor and, other than this Agreement and constitutes the Fee Agreements, complies in all material respects with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Advisor Agreements, other than this Agreement and the Fee Agreements, is a legal, valid and binding obligation agreement of the CompanyAdvisor, enforceable in accordance with its terms, except as enforceability rights to indemnity and contribution may be limited by applicable federal or state securities laws and subject to the qualification that the enforceability of the Advisor’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and other laws relating to or similar laws affecting creditors’ rights generally (whether statutory or decisional) and except as enforceability may be subject to by general equitable principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, . The representations and (iv) conforms warranties made by the Advisor in this paragraph in regards to the descriptions thereof contained in Fee Agreements are made only as of the Registration Statement, the Pricing Disclosure Package and the ProspectusClosing Date (as defined below).
(d) Except as The execution and delivery by the Advisor of, and the performance by the Advisor of its obligations under the Advisor Agreements will not contravene (i) any provision of applicable law, (ii) the Advisor’s limited liability company operating agreement, (iii) any agreement or other instrument binding upon the Advisor that is material to the Advisor, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Advisor, whether foreign or domestic, except in the case of (i), (iii) or (iv) above where such contravention does not or would not constitute have an Advisor Material Adverse Effect. No consent, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instrumentsapproval, or in violation of any law, statute, rule, regulation, judgmentauthorization, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisorpermit of, or its ability to perform 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 Advisor of its obligations under the Advisory Advisor Agreements, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement. Except , or such as which the failure to obtain would not constitute neither have an Advisor Material Adverse Effect nor a Trust Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is are no action, suit, proceeding, inquiry or investigation before or brought by any court legal or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Advisor, threatened, against or affecting threatened to which the Advisor is a party or to which any of the properties of the Advisor is subject (i) other than (x) proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus or (y) proceedings that would reasonably likely result not, individually or in the aggregate, have an Advisor Material Adverse Effect, or reasonably be expected to have a material adverse effect on the power or ability of the Advisor to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to the Advisor 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 Registration Statement that are not described or filed as required by the Acts and the applicable Rules and Regulations in all material respects.
(Af) No filing The Advisor has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or authorizationdomestic, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent to own and use its assets and to conduct its business in the manner described in the Time of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package Sale Prospectus and the Prospectus, except (1) such as have been already obtained to the extent described in the Time of Sale Prospectus and (2) such, the Prospectus or that the failure of which to have obtained, obtain or file the foregoing would not reasonably be expected to have an Advisor Material Adverse Effect or a Trust Material Adverse Effect.
(g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus and by the Advisory Agreements and InstrumentsAdvisor Agreements.
(h) The Management Agreement is in full force and effect and the Advisor possesses such governmental licenses issued is not in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described Advisor under the Management Agreement.
(i) All information furnished by the Advisor for use in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor is in compliance with the terms and conditions Time of all such governmental licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Sale Prospectus and the Prospectus, including, without limitation, the Advisor has not been notified that any executive, key employee or significant group of employees description of the Advisor plans Advisor, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to terminate employment with state any material fact necessary to make such information not misleading (in the Advisor. Neither the Advisor nor any executive or key employee case of the Advisor is subject to any noncompeteTime of Sale Prospectus and Prospectus, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities in light of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where circumstances under which such termination or violation would not constitute an Advisor Material Adverse Effectstatement was made).
(j) There has not occurred any material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, business prospects, properties or operations of the Advisor from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Advisor which are material to the Advisor other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) The Advisor operates maintains a system of internal controls sufficient designed to provide reasonable assurance that (Ai) transactions effectuated by it on behalf of under the Company Management Agreement are executed in accordance with its management’s general or specific authorization; and (Bii) access to the CompanyTrust’s assets is permitted only in accordance with its management’s general or specific authorization.
(ki) None of the Advisor or any director, officer, employee, or, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, has taken or will take any action in connection with the Trust in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Advisor and to the Advisor’s knowledge its affiliates (within the meaning of Rule 405) 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; and (iii) the Advisor will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(m) The operations of the Advisor are and have been conducted at all times in 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 Advisor with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened.
(i) None of the Advisor or any director, officer, employee, or, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, is an individual or entity (“Advisor Person”) that is, or is owned or controlled by one or more Advisor Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Advisor 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 Advisor Person: (A) to fund or facilitate any activities or business of or with any Advisor 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 Advisor Person (including any Advisor Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five (5) years, the Advisor has not knowingly engaged in, is not prohibited by the Investment Advisers Act of 1940now knowingly engaged in, as amended (the “Advisers Act”)and will not knowingly engage in, any dealings or transactions with any Advisor Person, or in any country or territory, that at the rules and regulations thereunder, from performing its obligations under time of the Advisory Agreements and Instruments as described in dealing or transaction is or was the Pricing Disclosure Package and the Prospectussubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Science & Technology Trust II)
Representations and Warranties of the Advisor. The Advisor representsrepresents and warrants to each of the Underwriters as of the date hereof, warrants as of the Applicable Time, as of the Closing Date and agrees thateach Option Closing Date, if any, as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company in good standing corporation under the laws of the State of Delaware and has all requisite Iowa, with full corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Disclosure Package. The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of businessits business requires such qualification, except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on the condition (financial or otherwise), properties, assets, businessliabilities, rights, operations, earnings, propertiesbusiness, management or prospects or condition (financial or otherwise) of the Advisor, whether or not arising from transactions in the ordinary course of business of the Adviser (an “Advisor Material Adverse Effect”).
(b) Each Advisor Agreement has been duly authorized, executed and delivered by the Advisor, and constitutes a valid, legal, and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws. The Advisor has full power and authority to enter into each Advisor Agreement.
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise (1) that is required to be described in the Registration Statement, the Prospectus or the Disclosure Package that are not so described, or (2) which, if determined adversely to the Advisor might have an Advisor Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement, the Prospectus and the Disclosure Package.
(d) Neither the Advisor, nor to the Advisor’s knowledge, any of its affiliates, has taken or may 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 Common Stock to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, partners, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement, the Advisor has not incurred any liability for any finder’s or broker’s fee, or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its certificate of incorporation or bylaws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have an Advisor Material Adverse Effect. The execution and delivery of each Advisor Agreement and the consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the certificate of incorporation or bylaws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction, which breach or default has had or is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject reasonably likely to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute have an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements ; and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, 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 Advisor, threatened, against or affecting the Advisor that would reasonably likely result in an Advisor Material Adverse Effect.
(A) No filing with, or authorizationconsent, approval, consent, license, order, registration, qualification authorization or decree of, order of any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, agency is necessary or required for the performance consummation by the Advisor of the transactions contemplated herebyby this Agreement or any other Advisor Agreement, on except as have been obtained or will be obtained prior to the terms Closing Date or may be required by the Advisers Act, the 1940 Act or the Exchange Act.
(h) The Advisor 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 Advisor Agreements as contemplated by the Pricing Disclosure Package Registration Statement, the Prospectus and the Prospectus, except (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse EffectDisclosure Package.
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus Disclosure Package and under this Agreement and the Advisory Agreements and Instrumentsother Advisor Agreements.
(hj) The Advisor possesses such governmental licenses issued by description of the appropriate federalAdvisor, stateits business, local or foreign regulatory agencies or bodies necessary and the statements attributable to conduct its business as described the Advisor, in the Registration Statement, the Pricing Prospectus and the Disclosure Package and any Preliminary Prospectus complied and comply in all material respects with the provisions of the Securities Act, the Advisers Act, the 1933 Act Rules and Regulations, the 1940 Act, the 1940 Act Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) Since the date as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Disclosure Package, each Preliminary Prospectus there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business; and since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus; , there has not been any event which could reasonably be expected to have a material adverse effect on the ability of the Advisor is in compliance with the terms to perform its obligations under this Agreement and conditions of all such governmental licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably likely result in an any other Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse EffectAgreement.
(il) Each Advisor Agreement complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(m) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusDisclosure Package (or any amendment or supplement to either of them), the Advisor has not been notified that any executive, key employee no trustee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee officer of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by an “interested person” (as defined in the present or proposed business activities 1940 Act) of the Company or the Advisor Advixxx xx xn “affiliated person” (as described defined in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effect1940 Act) of any Undexxxxxxx.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Green Energy & Growth Fund, Inc.)
Representations and Warranties of the Advisor. The Advisor represents, warrants and agrees that:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing as would not have a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition (financial or otherwise) of the Advisor, or its ability to perform its obligations under 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 Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) The execution, delivery and performance of this Agreement by the Advisor and the consummation of the transactions contemplated hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Advisor and its subsidiaries, as the case may be, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Advisor or any of its subsidiaries is a party or by which the Advisor or any of its subsidiaries is bound or to which any of the property or assets of the Advisor or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the Organizational Documents or the Advisory Agreement of the Advisor or any of its subsidiaries; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Advisor or any of its subsidiaries or any of its and their properties or assets.
(e) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(ef) There is no action, suit, proceeding, 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 Advisor, threatened, against or affecting the Advisor that would reasonably likely result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package and the Prospectus, except (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effect.
(gh) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus and the Advisory Agreements and Instruments.
(hi) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(ij) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effect.
(jk) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(kl) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto you as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of businessits business requires such qualification, except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) Each of the assetsCompany Agreements (to which the Advisor is a party) has been duly authorized, businessexecuted and delivered by the Advisor, operationsand constitutes a valid, earningslegal, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into this Agreement and each of the Company Agreements (to which the Advisor is a party).
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Since the date as of which information is given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) This Agreement and each of the Company Agreements (to which the Advisor is not prohibited by a party) comply in all material respects with all applicable provisions of the Investment 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Equity Underwriting Agreement (RMR Hospitality & Real Estate Fund)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters that:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Disclosure Package and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Disclosure Package and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (x) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (y) prevent or materially interfere with consummation of the transactions contemplated hereby, or (z) result in the delisting of shares of Common Stock from NASDAQ (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (x), (y), and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respects.transaction or agreement not in the ordinary course of business;
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not Disclosure Package (i) have been duly authorized by all necessary corporate action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Prospectus and the Disclosure Package, except such as have already been obtained or made under the Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.from FINRA;
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect;
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement, the Prospectus or affecting the Advisor that would Disclosure Package (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Prospectus, except (1) such as have been already obtained and (2) suchRegistration Statement, the failure of which Prospectus or the Disclosure Package, including ordinary routine litigation incidental to have obtainedthe business, would could not reasonably be expected to have an Advisor Material Adverse Effect.;
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Prospectus and the Disclosure Package;
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business;
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(k) Except as disclosed in the Disclosure Package and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with any of the Underwriters;
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus the Prospectus, this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Package and the Prospectus; the and
(m) The Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters as of the date hereof that:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and organized, is validly existing as a limited liability company and is in good standing under the laws of its jurisdiction of organization, has the State of Delaware and has all requisite power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus; Prospectus and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason the conduct of the its business or its ownership or leasing of property or the conduct of businessrequires such qualification, except where to the extent that the failure to be so to qualify qualified or to be in good standing as would could not (i) reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, properties, prospects Advisor’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), business prospects, earnings, business, operations or properties of the Advisor, whether or its ability to perform its obligations under any obligationnot arising from transactions in the ordinary course of business ((i) and (ii), agreement, covenant individually 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 Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the an “Advisor Material Adverse Effect”).
(b) The Advisor 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 as an investment adviser to the Trust as contemplated by the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Advisor, threatened by the Commission.
(c) This Each of this Agreement, the Management Agreement, the Fee Waiver Agreement, the Structuring Fee Agreement between the Advisor and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreement”) and the Structuring Fee Agreement between the Advisor and [ ] (the “[ ] Fee Agreement) (this Agreement, the Management Agreement, the Fee Waiver Agreement, the Xxxxxx Xxxxxxx Fee Agreement and the Advisory [ ] Fee Agreement (iare referred to herein, collectively, as the “Advisor Agreements”, and the Advisor Agreements, other than this Agreement, the Management Agreement and the Fee Waiver Agreement, are referred to herein collectively as the “Fee Agreements”) has been duly and validly authorized by the Advisorauthorized, (ii) has been duly and validly executed and delivered by the Advisor and, other than this Agreement and constitutes the Fee Agreements, complies in all material respects with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Advisor Agreements, other than this Agreement and the Fee Agreements, is a legal, valid and binding obligation agreement of the CompanyAdvisor, enforceable in accordance with its terms, except as enforceability rights to indemnity and contribution may be limited by applicable federal or state securities laws and subject to the qualification that the enforceability of the Advisor’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and other laws relating to or similar laws affecting creditors’ rights generally (whether statutory or decisional) and except as enforceability may be subject to by general equitable principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, . The representations and (iv) conforms warranties made by the Advisor in this paragraph in regards to the descriptions thereof contained in Fee Agreements are made only as of the Registration Statement, the Pricing Disclosure Package and the ProspectusClosing Date (as defined below).
(d) Except as The execution and delivery by the Advisor of, and the performance by the Advisor of its obligations under the Advisor Agreements will not contravene (i) any provision of applicable law, (ii) the Advisor’s limited liability company operating agreement, (iii) any agreement or other instrument binding upon the Advisor that is material to the Advisor, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Advisor, whether foreign or domestic, except in the case of (i), (iii) or (iv) above where such contravention does not or would not constitute have an Advisor Material Adverse Effect. No consent, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instrumentsapproval, or in violation of any law, statute, rule, regulation, judgmentauthorization, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisorpermit of, or its ability to perform 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 Advisor of its obligations under the Advisory Advisor Agreements, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement. Except , or such as which the failure to obtain would not constitute neither have an Advisor Material Adverse Effect nor a Trust Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is are no action, suit, proceeding, inquiry or investigation before or brought by any court legal or governmental agency or body, domestic or foreign, now pending, proceedings pending or, to the knowledge of the Advisor, threatened, against or affecting threatened to which the Advisor is a party or to which any of the properties of the Advisor is subject (i) other than (x) proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus or (y) proceedings that would reasonably likely result not, individually or in the aggregate, have an Advisor Material Adverse Effect, or reasonably be expected to have a material adverse effect on the power or ability of the Advisor to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to the Advisor 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 Registration Statement that are not described or filed as required by the Acts and the applicable Rules and Regulations in all material respects.
(Af) No filing The Advisor has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or authorizationdomestic, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent to own and use its assets and to conduct its business in the manner described in the Time of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package Sale Prospectus and the Prospectus, except (1) such as have been already obtained to the extent described in the Time of Sale Prospectus and (2) such, the Prospectus or that the failure of which to have obtained, obtain or file the foregoing would not reasonably be expected to have an Advisor Material Adverse Effect or a Trust Material Adverse Effect.
(g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus and by the Advisory Agreements and InstrumentsAdvisor Agreements.
(h) The Management Agreement is in full force and effect and the Advisor possesses such governmental licenses issued is not in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described Advisor under the Management Agreement.
(i) All information furnished by the Advisor for use in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor is in compliance with the terms and conditions Time of all such governmental licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Sale Prospectus and the Prospectus, including, without limitation, the Advisor has not been notified that any executive, key employee or significant group of employees description of the Advisor plans Advisor, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to terminate employment with state any material fact necessary to make such information not misleading (in the Advisor. Neither the Advisor nor any executive or key employee case of the Advisor is subject to any noncompeteTime of Sale Prospectus and Prospectus, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities in light of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where circumstances under which such termination or violation would not constitute an Advisor Material Adverse Effectstatement was made).
(j) There has not occurred any material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, business prospects, properties or operations of the Advisor from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Advisor which are material to the Advisor other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) The Advisor operates maintains a system of internal controls sufficient designed to provide reasonable assurance that (Ai) transactions effectuated by it on behalf of under the Company Management Agreement are executed in accordance with its management’s general or specific authorization; and (Bii) access to the CompanyTrust’s assets is permitted only in accordance with its management’s general or specific authorization.
(ki) None of the Advisor or any director, officer, employee, or, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, has taken or will take any action in connection with the Trust in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Advisor and to the Advisor’s knowledge its affiliates (within the meaning of Rule 405) 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; and (iii) the Advisor will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(m) The operations of the Advisor are and have been conducted at all times in 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 Advisor with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened.
(i) None of the Advisor or any director, officer, employee, or, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, is an individual or entity (“Advisor Person”) that is, or is owned or controlled by one or more Advisor Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Advisor 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 Advisor Person: (A) to fund or facilitate any activities or business of or with any Advisor 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 Advisor Person (including any Advisor Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five (5) years, the Advisor has not knowingly engaged in, is not prohibited by the Investment Advisers Act of 1940now knowingly engaged in, as amended (the “Advisers Act”)and will not knowingly engage in, any dealings or transactions with any Advisor Person, or in any country or territory, that at the rules and regulations thereunder, from performing its obligations under time of the Advisory Agreements and Instruments as described in dealing or transaction is or was the Pricing Disclosure Package and the Prospectussubject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Health Sciences Trust II)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto you as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State The Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of businessits business requires such qualification, except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) Each Advisor Agreement and each of the assetsCompany Agreements (to which the Advisor is a party) has been duly authorized, businessexecuted and delivered by the Advisor, operationsand constitutes a valid, earningslegal, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into this Agreement and each of the Company Agreements (to which the Advisor is a party).
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Since the date as of which information is given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) This Agreement and each of the Company Agreements (to which the Advisor is not prohibited by a party) comply in all material respects with all applicable provisions of the Investment 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters that:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Disclosure Package and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Disclosure Package and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (x) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (y) prevent or materially interfere with consummation of the transactions contemplated hereby or (z) prevent the shares of Common Stock from being accepted for listing on, or result in the delisting of shares of Common Stock from, NASDAQ (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (x), (y) and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respects.transaction or agreement not in the ordinary course of business;
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not Disclosure Package (i) have been duly authorized by all necessary corporate action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Prospectus and the Disclosure Package, except such as have already been obtained or made under the Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.from FINRA;
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect;
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement, the Prospectus or affecting the Advisor that would Disclosure Package (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Prospectus, except (1) such as have been already obtained and (2) suchRegistration Statement, the failure of which Prospectus or the Disclosure Package, including ordinary routine litigation incidental to have obtainedthe business, would could not reasonably be expected to have an Advisor Material Adverse Effect.;
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Prospectus and the Disclosure Package;
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business;
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock;
(k) Except as disclosed in the Disclosure Package and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with any of the Underwriters;
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus the Prospectus, this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Package and the Prospectus; the and
(m) The Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Advsior Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters that:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (x) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (y) prevent or materially interfere with consummation of the transactions contemplated hereby, or (z) resulting in the delisting of the Common Stock from NASDAQ (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (x), (y) and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respects.transaction or agreement not in the ordinary course of business;
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Registration Statement, the Disclosure Package, each Preliminary Prospectus Package and the Prospectus do not (i) have been duly authorized by all necessary corporate action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Registration Statement, the Disclosure Package and the Prospectus, except such as have already been obtained or made under the Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.from FINRA;
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect;
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement, the Disclosure Package or affecting the Advisor that would Prospectus (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Prospectus, except (1) such as have been already obtained and (2) suchRegistration Statement, the failure of which Prospectus or the Disclosure Package, including ordinary routine litigation incidental to have obtainedthe business, would could not reasonably be expected to have an Advisor Material Adverse Effect.;
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement, the Disclosure Package and the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Registration Statement, the Disclosure Package and the Prospectus;
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business;
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(k) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with any of the Underwriters;
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus the Prospectus, this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Package and the Prospectus; the and
(m) The Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters that:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Disclosure Package and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Disclosure Package and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (w) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (x) prevent or materially interfere with consummation of the transactions contemplated hereby, (y) result in the delisting of shares of Common Stock from NASDAQ or (z) prevent the Notes from being listed on the NYSE (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (w), (x), (y) and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respects.transaction or agreement not in the ordinary course of business;
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect;
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not Disclosure Package (i) have been duly authorized by all necessary corporate action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Prospectus and the Disclosure Package, except such as have already been obtained or made under the Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.from FINRA;
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect;
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement, the Prospectus or affecting the Advisor that would Disclosure Package (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Prospectus, except (1) such as have been already obtained and (2) suchRegistration Statement, the failure of which Prospectus or the Disclosure Package, including ordinary routine litigation incidental to have obtainedthe business, would could not reasonably be expected to have an Advisor Material Adverse Effect.;
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the Act, the 1940 Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Prospectus and the Disclosure Package;
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business;
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes;
(k) Except as disclosed in the Disclosure Package and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with any of the Underwriters;
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus the Prospectus, this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Package and the Prospectus; the and
(m) The Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Advsior Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto you as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of businessits business requires such qualification, except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) Each Advisor Agreement and each of the assetsCompany Agreements (to which the Advisor is a party) has been duly authorized, businessexecuted and delivered by the Advisor, operationsand constitutes a valid, earningslegal, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into this Agreement and each of the Company Agreements (to which the Advisor is a party).
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Since the date as of which information is given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) This Agreement and each of the Company Agreements (to which the Advisor is not prohibited by a party) comply in all material respects with all applicable provisions of the Investment 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Equity Underwriting Agreement (RMR Preferred Dividend Fund)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants to and agrees with each of the Underwriters as of the date hereof that:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and organized, is validly existing as a limited liability company and is in good standing under the laws of its jurisdiction of organization, has the State of Delaware and has all requisite power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus; Prospectus and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason the conduct of the its business or its ownership or leasing of property or the conduct of businessrequires such qualification, except where to the extent that the failure to be so to qualify qualified or to be in good standing as would could not (i) reasonably be expected, singly or in the aggregate, to have a material adverse effect on the assetsAdvisor’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) reasonably be expected, businesssingly or in the aggregate, operations, earnings, properties, prospects or to have a material adverse effect on the condition (financial or otherwise) ), business prospects, earnings, business, operations or properties of the Advisor, whether or its ability to perform its obligations under any obligationnot arising from transactions in the ordinary course of business ((i) and (ii), agreement, covenant individually 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 Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the an “Advisor Material Adverse Effect”).
(cb) This Agreement The Advisor is duly registered as an investment adviser under the Advisers Act, and the Advisory Agreement (i) has been duly and validly authorized is not prohibited by the Advisor, (ii) has been duly and validly executed and delivered by Advisers Act or the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except Investment Company Act from acting as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms an investment adviser to the descriptions thereof contained in Trust as contemplated by the Registration Statement, the Pricing Disclosure Package Time of Sale Prospectus and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation and no order of its Organizational Documents suspension or in default in the performance revocation of such registration has been issued or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, proceedings therefor initiated or, to the knowledge of the Advisor, threatenedthreatened by the Commission.
(c) Each of this Agreement, against the Management Agreement, the Fee Waiver Agreement, the Structuring and Syndication Fee Agreement between the Advisor and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Advisor and [ ] (the “[ ] Fee Agreement”) (this Agreement, the Management Agreement, the Fee Waiver Agreement, the Xxxxxx Xxxxxxx Fee Agreement and the [ ] Fee Agreement are referred to herein, collectively, as the “Advisor Agreements”, and the Advisor Agreements, other than this Agreement, the Management Agreement and the Fee Waiver Agreement, are referred to herein collectively as the “Fee Agreements”) has been duly authorized, executed and delivered by the Advisor and, other than this Agreement and the Fee Agreements, complies in all material respects with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Advisor Agreements, other than this Agreement and the Fee Agreements, is a valid and binding agreement of the Advisor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability. The representations and warranties made by the Advisor in this paragraph in regards to the Fee Agreements are made only as of the Closing Date (as defined below).
(d) The execution and delivery by the Advisor of, and the performance by the Advisor of its obligations under the Advisor Agreements will not contravene (i) any provision of applicable law, (ii) the Advisor’s limited liability company operating agreement, (iii) any agreement or affecting other instrument binding upon the Advisor that is material to the Advisor, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Advisor, whether foreign or domestic, except in the case of (i), (iii) or (iv) above where such contravention does not or would reasonably likely result in not have an Advisor Material Adverse Effect.
(A) . No filing with, or authorizationconsent, approval, consentauthorization, license, order, registration, qualification order or decree permit of, or qualification with, any court or governmental authority body or agency, domestic self-regulatory organization or foreign, (B) no authorization, approval, vote court or other consent of any stockholdertribunal, equity holder whether foreign or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entitydomestic, is necessary or required for the performance by the Advisor of its obligations under the Advisor Agreements, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement, or such as which the failure to obtain would neither have an Advisor Material Adverse Effect nor a Trust Material Adverse Effect.
(e) There are no legal or governmental proceedings pending or, to the knowledge of the Advisor, threatened to which the Advisor is a party or to which any of the properties of the Advisor is subject (i) other than (x) proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus or (y) proceedings that would not, individually or in the aggregate, have an Advisor Material Adverse Effect, or reasonably be expected to have a material adverse effect on the power or ability of the Advisor to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to the Advisor 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 Registration Statement that are not described or filed as required by the Acts and the applicable Rules and Regulations in all material respects.
(f) The Advisor has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except (1) such as have been already obtained and (2) suchto the extent described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or that the failure of which to have obtained, obtain or file the foregoing would not reasonably be expected to have an Advisor Material Adverse Effect or a Trust Material Adverse Effect.
(g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Time of Sale Prospectus and the Prospectus and by the Advisory Agreements and InstrumentsAdvisor Agreements.
(h) The Management Agreement is in full force and effect and the Advisor possesses such governmental licenses issued is not in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described Advisor under the Management Agreement.
(i) All information furnished by the Advisor for use in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor is in compliance with the terms and conditions Time of all such governmental licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Sale Prospectus and the Prospectus, including, without limitation, the Advisor has not been notified that any executive, key employee or significant group of employees description of the Advisor plans Advisor, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to terminate employment with state any material fact necessary to make such information not misleading (in the Advisor. Neither the Advisor nor any executive or key employee case of the Advisor is subject to any noncompeteTime of Sale Prospectus and Prospectus, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities in light of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where circumstances under which such termination or violation would not constitute an Advisor Material Adverse Effectstatement was made).
(j) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, business prospects, properties or operations of the Advisor from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Advisor which are material to the Advisor other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) The Advisor operates maintains a system of internal controls sufficient designed to provide reasonable assurance that (Ai) transactions effectuated by it on behalf of under the Company Management Agreement are executed in accordance with its management’s general or specific authorization; and (Bii) access to the CompanyTrust’s assets is permitted only in accordance with its management’s general or specific authorization.
(ki) None of the Advisor or its affiliates (within the meaning of Rule 405), or any director, officer or employee thereof, or, to the Advisor’s knowledge, any agent or representative of the Advisor or of any of its affiliates (within the meaning of Rule 405), has taken or will take any action in connection with the Trust in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Advisor and its affiliates (within the meaning of Rule 405) have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) the Advisor will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(m) The operations of the Advisor is not prohibited by are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Investment Advisers Act of 1940Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “Advisers Act”USA PATRIOT ACT), or and the applicable anti-money laundering statutes of jurisdictions where the Advisor conducts business, the rules and regulations thereunderthereunder and any related or similar rules, from performing regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Advisor 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 Advisor with respect to the Advisor Anti-Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened.
(i) None of the Advisor or any of its obligations under directors, officers, or employees, or, to the Advisory Agreements Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, is an individual or entity (“Advisor Person”) that is, or is owned or controlled by one or more Advisor Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Instruments as described Syria).
(ii) The Advisor 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 Advisor Person: (A) to fund or facilitate any activities or business of or with any Advisor 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 Advisor Person (including any Advisor Person participating in the Pricing Disclosure Package offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Advisor has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Advisor Person, or in any country or territory, that at the Prospectustime of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Innovation & Growth Trust)
Representations and Warranties of the Advisor. The Advisor representsrepresents and warrants to, warrants and agrees with, each of the Underwriters that:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing exists as a limited liability company in good standing under the laws of its jurisdiction of organization. The Advisor is duly qualified to do business and is in good standing as a limited liability company in each jurisdiction in which the State character or location of Delaware its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which (individually and in the aggregate) could not reasonably be expected to have a Material Adverse Effect.
(b) The Advisor has all requisite power and authority authority, and all necessary Consents to own, lease and operate its properties and to conduct its business as described it is now being conducted, and each such Consent is valid and in the Registration Statementfull force and effect, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing except in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so case as could not reasonably be expected to qualify or to be in good standing as would not have a material adverse effect on the assetsMaterial Adverse Effect. The Advisor has not received notice of any investigation or proceedings which, business, operations, earnings, properties, prospects or condition (financial or otherwise) of if decided adversely to the Advisor, or its ability could reasonably be expected to perform its obligations under any obligationresult in, 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 Advisor is a party or by which it may be boundrevocation of, or to which imposition of a materially burdensome restriction on, any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”)such Consent.
(c) This The Advisor has the full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement and the Advisory Agreement. This Agreement (i) has been duly and validly authorized authorized, executed and delivered by the Advisor, (ii) . The Advisory Agreement has been duly and validly authorized, executed and delivered by the Advisor and constitutes a legal, valid and binding obligation agreement of the CompanyAdvisor, enforceable in accordance with its terms, except as enforceability may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ the rights generally and except as enforceability may be subject to or remedies of creditors or (ii) the effect of general principles of equity (regardless of equity, whether such enforceability enforcement is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms the discretion of the court before which any proceeding therefor may be brought. No event has occurred with respect to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as Advisor that would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in impede the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an .
(d) The compliance by the Advisor Material Adverse Effect, with this Agreement and the consummation of the transactions herein contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether not (i) conflict with or without result in a breach or violation of any of the giving of terms and provisions of, or constitute a default (or an event which with notice or passage lapse of time time, or both, conflict with or would constitute a breach of, or default default) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Advisor nor will such action result in pursuant to, any violation indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the provisions of the Organizational Documents of Advisor is a party or by which the Advisor or its respective properties, operations or assets may be bound or (ii) violate or conflict with any applicable provision of the certificate of formation or limited liability company agreement of the Advisor, or (iii) violate or conflict with any statute, law, statute, rule, regulation, ordinance, directive, judgment, order, writ decree or decree order of any governmentjudicial, government instrumentality regulatory or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court other legal or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against or affecting the Advisor that would reasonably likely result in an Advisor Material Adverse Effect.
(Ae) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree Consent of, with or from any court judicial, regulatory or other legal or governmental authority agency or agencybody or any third party, domestic foreign or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entitydomestic, is necessary or required for the execution, delivery and performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package and the Prospectus, except (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effectthis Agreement.
(g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus and the Advisory Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(if) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign, pending to which the Advisor has not been notified that is a party or of which any executiveproperty, key employee operations or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee assets of the Advisor is the subject which, individually or in the aggregate, if determined adversely to any noncompetethe Advisor, nondisclosurecould reasonably be expected to have a Material Adverse Effect; to the Advisor's knowledge, confidentialityno such proceeding, employmentlitigation or arbitration is threatened or contemplated; and the defense of all such proceedings, consulting litigation and arbitration against or similar agreement that would be violated by the present or proposed business activities of the Company or involving the Advisor as described could not reasonably be expected to have a Material Adverse Effect.
(g) The information concerning the Advisor and its affiliates (other than the Company, the Operating Partnership and the Subsidiaries) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse EffectProspectus is true and correct in all material respects.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(kh) The Advisor is not prohibited and, upon the consummation of the transactions contemplated by this Agreement, will not be, required to be registered as an "investment adviser" under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectusamended.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto you as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State The Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of businessits business requires such qualification, except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) This Agreement and each of the assetsCompany Agreements (to which the Advisor is a party) has been duly authorized, businessexecuted and delivered by the Advisor, operationsand constitutes a valid, earningslegal, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into this Agreement and each of the Company Agreements (to which the Advisor is a party).
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Since the date as of which information is given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) This Agreement, each of the Company Agreements (to which the Advisor is not prohibited by a party) comply in all material respects with all applicable provisions of the Investment 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Equity Underwriting Agreement (RMR Hospitality & Real Estate Fund)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto each of the Underwriters as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State The Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, its business requires such qualification; except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) This Agreement and each of the assetsCompany Agreements (to which the Advisor is a party) has been duly authorized, businessexecuted and delivered by the Advisor, operationsand constitutes a valid, earningslegal, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into this Agreement and each of the Company Agreements (to which the Advisor is a party).
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Common Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement and the Lead Managing Underwriter Additional Compensation Agreement dated as of the date hereof by and between the Advisor and RBC Xxxx Xxxxxxxx Inc., the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Incorporation ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Since the date as of which information is given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) This Agreement, each of the Company Agreements (to which the Advisor is not prohibited by a party) comply in all material respects with all applicable provisions of the Investment 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Equity Underwriting Agreement (RMR Real Estate Fund)
Representations and Warranties of the Advisor. The Advisor representsrepresents and warrants to, warrants and agrees thatwith, the Agent that as of each Representation Date, except as may be disclosed in the Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:
(a) The information regarding With respect to the Advisor Advisor, except as otherwise disclosed in the Registration Statement and the Prospectus, each Preliminary Prospectus subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package is true Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to (x) have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Advisor, (y) prevent or materially interfere with consummation of the transactions contemplated hereby, or (z) resulting in the delisting of the Common Shares from the Principal Market (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (x), (y) and correct (z) being herein referred to as an “Advisor Material Adverse Effect”) and (ii) the Advisor has not incurred any material liability or obligation, indirect, direct or contingent, not in all the ordinary course of business or entered into any material respectstransaction or agreement not in the ordinary course of business.
(b) The Advisor has been is a limited liability company that is duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State state of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business business, and is in good standing in each other jurisdiction in which such qualification is required, required whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so to qualify or to be in good standing as would not, individually or in the aggregate, have an Advisor Material Adverse Effect.
(c) The Advisor is not have a material adverse effect on the assets, business, operations, earnings, properties, prospects in violation of or condition default under: (financial i) its certificate of formation or otherwiseother organizational documents; (ii) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement instrument; or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violatedany statute, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable, except with respect to clauses (ii) and (iii) herein, for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute not, individually or in the aggregate, have an Advisor Material Adverse Effect.
(d) The Advisor’s execution, the delivery and performance of this Agreement and consummation of the transactions contemplated herein hereby and in by the Pricing Disclosure Package, each Preliminary Prospectus Registration Statement and the Prospectus do not (i) have been duly authorized by all necessary limited liability company action and will notnot result in any violation of the provisions of the organizational documents of the Advisor, whether with or without the giving of notice or passage of time or both, (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor pursuant to, or require the consent of any other party to, any existing instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in an Advisor Material Adverse Effect and (iii) will such action not result in any violation of any law, administrative regulation or administrative or court decree applicable to the provisions Advisor. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Advisor’s execution, delivery and performance of this Agreement or consummation of the Organizational Documents of transactions contemplated hereby and by the Advisor Registration Statement and the Prospectus, except such as have already been obtained or made under the Securities Act and the 1940 Act and such as may be required under any applicable law, statute, rule, regulation, judgment, order, writ state securities or decree of any government, government instrumentality blue sky laws or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operationsfrom FINRA.
(e) The Advisor possesses such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business, and the Advisor has not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in an Advisor Material Adverse Effect.
(f) There is no action, legal suit, proceeding, inquiry proceeding or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against the Advisor, which is required to be disclosed in the Registration Statement or affecting the Advisor that would Prospectus (other than as disclosed therein), or which might reasonably likely be expected to result in an Advisor Material Adverse Effect.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor which might reasonably be expected to materially and adversely affect the consummation of the Advisortransactions contemplated in this Agreement, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of its obligations hereunder or under the transactions contemplated hereby, on Investment Advisory Agreement. The aggregate of all pending legal or governmental proceedings to which either the terms contemplated by Advisor is a party or of which any of its property or assets is the Pricing Disclosure Package and subject which are not described in the Registration Statement or the Prospectus, except (1) such as have been already obtained and (2) suchincluding ordinary routine litigation incidental to the business, the failure of which to have obtained, would could not reasonably be expected to have an Advisor Material Adverse Effect.
(g) The description of the Advisor and its business, and the statements attributable to the Advisor, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the Securities Act, the 1940 Act and the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The Advisor is registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from acting under the Investment Advisory Agreement as an investment advisor for the Company as contemplated by the Registration Statement and the Prospectus.
(i) The Advisor maintains insurance covering its properties, operations, personnel and business as it deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Advisor and its business.
(j) The Advisor has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(k) Except as disclosed in the Registration Statement and the Prospectus, the Advisor has no material lending or other relationship with a bank or lending institution affiliated with the Agent.
(l) The Advisor has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure PackageProspectus, each Preliminary Prospectus this Agreement and the Prospectus Investment Advisory Agreement and the Advisory Agreements Advisor owns, leases or has access to all properties and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies other assets that are necessary to the conduct of its business and to perform the services, as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus; the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(m) The Advisor is not aware that (i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor or (ii) any such executive or key employee of the Advisor is subject to any noncompetenon-compete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the ProspectusAdvisor, except where such termination or violation would not constitute reasonably be expected to have an Advisor Material Adverse Effect.
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(k) The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
Appears in 1 contract
Samples: Open Market Sale Agreement (Capitala Finance Corp.)
Representations and Warranties of the Advisor. The Advisor represents, represents and warrants and agrees thatto each of the Underwriters as follows:
(a) The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects.
(b) The Advisor has been duly organized and is validly existing as a limited liability company corporation in good standing under the laws of the State The Commonwealth of Delaware and has all requisite Massachusetts, with corporate power and authority to own, own or lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the . The Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction all jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, its business requires such qualification; except where the failure to be so to qualify qualified or to be in good standing as would not have a material adverse effect on Material Adverse Effect.
(b) Each Advisor Agreement has been duly authorized, executed and delivered by the assetsAdvisor, businessand constitutes a valid, operationslegal, earnings, properties, prospects or condition (financial or otherwise) and binding obligation of the Advisor, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Advisor has full power and authority to enter into each Advisor Agreement, each of the Company Agreements (to which the Advisor is a party) and the Additional Compensation Agreement.
(c) There is no action, suit, claim or proceeding pending or, to the knowledge of the Advisor, threatened against the Advisor before any court or administrative agency or otherwise which if determined adversely to the Advisor might have a Material Adverse Effect or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement and the Prospectus.
(d) Neither the Advisor, nor to the Advisor's knowledge, any of its affiliates, has taken or may 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 Common Shares to facilitate the sale or resale of the Shares.
(e) The Advisor carries, or is covered by, insurance, including, at a minimum, errors and omissions insurance, in such amounts and covering such risks as is adequate for the conduct of its businesses and the value of its properties and as is customary for companies engaged in similar industries. All policies of insurance insuring the Advisor or its ability to perform its obligations respective businesses, assets, employees, officers and directors are in full force and effect, and the Advisor is in compliance with the terms of such policies in all material respects. There are no claims by the Advisor under any obligationsuch policy or instrument as to which an insurance company is denying liability or defending under a reservation of rights clause.
(f) Other than as contemplated by this Agreement and the Additional Compensation Agreement, the Advisor has not incurred any liability for any finder's or broker's fee, or agent's commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(g) The Advisor is not, and with the giving of notice or lapse of time or both, will not be, in violation of or in default under its Articles of Organization ("Charter") or By-Laws or under any agreement, covenant lease, contract, indenture or condition contained other instrument or obligation to which it is a party or by which it, or any of its properties, is bound and which default has had or is reasonably likely to have a Material Adverse Effect. The execution and delivery of each Advisor Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or otherwise violate the terms and provisions of the Charter or By-Laws of the Advisor or (ii) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Advisor is a party or by which it may be boundany order, rule or regulation applicable to which any of the property or assets of the Advisor is subject (collectively, the “Advisor Agreements and Instruments”) (the “Advisor Material Adverse Effect”).
(c) This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement. Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or 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 Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
(e) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental of any regulatory body or administrative agency or bodyother governmental body having jurisdiction, domestic which breach or foreign, now pending, or, to the knowledge of the Advisor, threatened, against default has had or affecting the Advisor that would is reasonably likely result in an Advisor to have a Material Adverse Effect.
(Ah) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of The Advisor is duly registered as an investment adviser under the Advisor, (C) no waiver or consent under any Advisory Agreement Advisers Act and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Rules and Regulations under the 1940 Act from acting under the Company Agreements (to which such Advisor of the transactions contemplated hereby, on the terms is a party) as contemplated by the Pricing Disclosure Package Registration Statement and the Prospectus, except Prospectus (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effector any amendment or supplement thereto).
(gi) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Advisory Company Agreements and Instruments.
(h) The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; which the Advisor 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, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor 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 likely result in an Advisor Material Adverse Effect.
(i) Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor. Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effecta party).
(j) The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf description of the Company are executed in accordance with its management’s general or specific authorization; Advisor, Reit Management & Research LLC, and (B) access their affiliates and their respective businesses, and the statements attributable to the Company’s assets is permitted only Advisor, in accordance the Registration Statement and the Prospectus (and any amendment or supplement thereto) or any Preliminary Prospectus complied and comply in all material respects with its management’s general or specific authorizationthe provisions of the Acts, 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 necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(k) The Advisor Since the date as of which information is not prohibited given in the Registration Statement and the Prospectus through the date hereof, and except as may otherwise be disclosed in the Prospectus, there have been no transactions entered into by the Investment Advisor which are material to the Advisor other than in the ordinary course of its business.
(l) Each Advisor Agreement complies in all material respects with all applicable provisions of the 1940 Act, the Rules and Regulations under the 1940 Act, the Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the ProspectusAdvisers Act Rules and Regulations.
Appears in 1 contract
Samples: Equity Underwriting Agreement (RMR Hospitality & Real Estate Fund)
