Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company that: (a) the Collateral Manager is duly organized and validly existing under the laws of Maryland and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement; (b) the Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreement; (c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); (d) neither the Collateral Manager nor any of its affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement; (e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; and (f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtained.
Appears in 2 contracts
Samples: Collateral Management Agreement (FS Investment Corp II), Collateral Management Agreement (FS Investment CORP)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained;
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(g) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement (TPG RE Finance Trust, Inc.), Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager is a limited liability company duly organized and validly existing and in good standing under the laws of Maryland and the State of Delaware, has the full corporate power and authority to own its assets and transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) the Collateral Manager has full corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreementhereunder;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium moratorium, receivorship, conservatorship or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor no consent, approval, authorization or order of or declaration or filing with any of its affiliates government, governmental instrumentality or court or other Person is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon required for the performance by the Collateral Manager it of its duties under this Agreementhereunder, except such as have been duly made or obtained;
(e) neither the execution and delivery of this Agreement, nor the performance fulfillment of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to by the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, bylaws or limited liability company agreement and other constituent documentorganizational documents, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is boundparty, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which breach, violation or default would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement Agreement;
(f) it is not in material violation of any U.S. federal or state securities law or regulation promulgated thereunder and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the provisions best knowledge of the Global Master Repurchase Agreement applicable to the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement; and
(fg) no consentthe statements set forth in the Offering Circular, approvaldated March 29, authorization 2007 relating to the Notes (the “Offering Circular”), under the caption “The Collateral Manager,” do not contain any untrue statement of a material fact with respect to the Collateral Manager and its Affiliates or order omit to state a material fact with respect to the Collateral Manager and its Affiliates required to be stated therein or necessary to make the statements contained therein with respect to the Collateral Manager and its Affiliates, in light of or declaration or filing with any governmentthe circumstances under which they were made, governmental instrumentality or court or other person not misleading.
(h) the Collateral Manager is not required for to be registered as an investment advisor under the performance by it of its duties hereunder, except such as have been duly made or obtainedAdvisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager is a limited liability company duly organized and validly existing and in good standing under the laws of Maryland and the State of Delaware, has the full corporate power and authority to own its assets and transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) the Collateral Manager has full corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreementhereunder;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium moratorium, receivorship, conservatorship or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor no consent, approval, authorization or order of or declaration or filing with any of its affiliates government, governmental instrumentality or court or other Person is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon required for the performance by the Collateral Manager it of its duties under this Agreementhereunder, except such as have been duly made or obtained;
(e) neither the execution and delivery of this Agreement, nor the performance fulfillment of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to by the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, bylaws or limited liability company agreement and other constituent documentorganizational documents, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is boundparty, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which breach, violation or default would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement Agreement;
(f) it is not in violation of any U.S. federal or state securities law or regulation promulgated thereunder and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the provisions best knowledge of the Global Master Repurchase Agreement applicable to the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement; and
(fg) no consentthe statements set forth in the Offering Circular, approvaldated March 21, authorization 2006 relating to the Notes (the “Offering Circular”), under the caption “The Collateral Manager,” do not contain any untrue statement of a material fact with respect to the Collateral Manager and its Affiliates or order omit to state a material fact with respect to the Collateral Manager and its Affiliates required to be stated therein or necessary to make the statements contained therein with respect to the Collateral Manager and its Affiliates, in light of or declaration or filing with any governmentthe circumstances under which they were made, governmental instrumentality or court or other person not misleading.
(h) the Collateral Manager is not required for to be registered as an investment advisor under the performance by it of its duties hereunder, except such as have been duly made or obtainedAdvisor’s Act.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware, (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently currently engaged and (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager; the Collateral Manager has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreement;
(c) provisions of the Indenture applicable to the Collateral Manager; this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (ia) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (iib) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(db) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(c) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, operating agreement, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or by which the Collateral Manager is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph subsection (ec), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fd) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained;
(e) the Sections entitled “Summary—The Collateral Manager” and “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, do not contain any untrue statement of a material fact and do not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(f) the Collateral Manager is not required to register as an investment adviser under the Advisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement (Gramercy Capital Corp), Collateral Management Agreement (Gramercy Capital Corp)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the Commonwealth of Massachusetts, (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently currently engaged and (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager; the Collateral Manager has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreement;
(c) provisions of the Indenture applicable to the Collateral Manager; this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (ia) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (iib) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(db) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(c) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, operating agreement, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or by which the Collateral Manager is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph subsection (ec), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fd) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained; and
(e) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gramercy Capital Corp)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any that would have a material listing requirements adverse effect upon the ability of any exchange on which it is listed the Collateral Manager to perform its duties under this Agreement and the provisions of the Indenture applicable to the Collateral Manager, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the provisions of the Indenture applicable to the Collateral Manager;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager, Manager conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager; and;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained; and
(f) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Lument Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager hereby represents and warrants to the Company thatIssuer as follows:
(ai) the The Collateral Manager is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of Maryland and has the full power and authority to own its assets and to transact the business in which it is presently currently engaged and is duly qualified as a foreign corporation and is in good standing under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, require such qualification, except for failures those jurisdictions in which the failure to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, of this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) the Collateral Manager has full power and authority Indenture applicable to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreement;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium ; or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;hereunder or thereunder.
(eii) neither [Reserved].
(iii) The Collateral Manager has the execution necessary power and delivery of authority to execute, deliver and perform this Agreement, nor the performance of the terms hereof or Agreement and all obligations required hereunder and under the provisions of the Global Master Repurchase Indenture applicable to the Collateral Manager and has taken all necessary action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Indenture applicable to the Collateral Manager, conflicts with or results in a material breach or violation . No consent of any other person, including, without limitation, creditors of the material terms Collateral Manager, and no license, permit, approval or provisions authorization of, exemption by, notice or constitutes a material default underreport to, (i) its articles or registration, filing or declaration with, any governmental authority is required by the Collateral Manager in connection with this Agreement or the execution, delivery, performance, validity or enforceability of organization, bylaws this Agreement or other constituent document, (ii) the obligations required hereunder or under the terms of any material indenturethe Indenture applicable to the Collateral Manager. This Agreement has been, contractand each instrument and document required hereunder or under the terms of the Indenture, leasewill be, mortgageexecuted and delivered by a duly authorized officer of the Collateral Manager, deed and this Agreement constitutes, and each instrument and document required hereunder or under the terms of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Indenture when executed and delivered by the Collateral Manager is a party hereunder or is boundunder the terms of the Indenture, will constitute, the valid and legally binding obligations of the Collateral Manager enforceable against the Collateral Manager in accordance with their terms, subject, as to enforcement, to (iiiA) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any statute bankruptcy, receivership, insolvency or similar event applicable to the Collateral Manager and (B) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iv) any law, decree, order, rule or regulation applicable to the The Collateral Manager Information contained in the final Offering Circular as of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its propertiesdate, and which would haveas of the Closing Date does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions light of the Global Master Repurchase Agreement applicable circumstances under which they were made, not misleading, it being understood that the Offering Circular does not purport to provide the Collateral Manager; and
(f) no consent, approval, authorization or order scope of or declaration or filing disclosure required to be included in a prospectus with any government, governmental instrumentality or court or other person is required for respect to a registrant in connection with the performance by it offer and sale of its duties hereunder, except securities of such as have been duly made or obtainedregistrant under the Securities Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Varagon Capital Corp)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Company, as of the Closing Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Determination Date and as of the date of each Borrowing Base Certificate delivered pursuant to the LSA that:
(a) the Collateral Manager is duly organized and validly existing under the laws of Maryland the State of Delaware and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase AgreementTransaction Documents;
(b) the Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase AgreementTransaction Documents applicable to the Collateral Manager;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder Applicable Law or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatenedthreatened (i) asserting the invalidity of this Agreement or any other Transaction Document to which the Collateral Manager is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Collateral Manager is a party, (iii) seeking any determination or ruling that in either case could reasonably be expected to adversely affect the Transaction Documents or the transactions contemplated hereby or thereby, or (iv) that would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles declaration of organizationtrust, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, or (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andApplicable Law;
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtainedobtained and there is no injunction, writ, restraining order or other order of any nature that adversely affects the Collateral Manager’s performance of its obligations under any Transaction Document to which it is a party;
(g) all information, financial statements of the Collateral Manager, documents, books, records or reports furnished by the Collateral Manager to any Secured Party in connection with this Agreement are true, complete and correct in all material respects; provided that the Collateral Manager makes no representation with respect to any information furnished by an Obligor unless it has also certified as to such information;
(h) the Collateral Manager acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Portfolio transferred or Pledged hereunder are held and shall be held in trust for the benefit of the Secured Parties until deposited into the Collection Account within one (1) Business Day from receipt as required under the LSA;
(i) the Collateral Manager is not the subject of any Bankruptcy Proceeding or Bankruptcy Event. The transactions under this Agreement and any other Transaction Document to which the Collateral Manager is a party do not and will not render it not Solvent;
(j) with respect to each item of Underlying Collateral as of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, to the actual knowledge of an Authorized Person of the Collateral Manager: (a) none of the related Obligor’s operations is the subject of a material Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (b) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment. As of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, the Collateral Manager has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Collateral Manager have knowledge or reason to believe that any such notice will be received or is being threatened, in each case except as otherwise notified to the Administrative Agent in writing;
(k) the Collection Account is the only account to which Obligors have been instructed by the Collateral Manager to send Principal Collections and Interest Collections on the Collateral Portfolio;
(l) no event has occurred which constitutes a Collateral Manager Event of Default;
(m) the execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” act or similar law by the Collateral Manager;
(n) none of the transactions contemplated herein or the other Transaction Documents (including, without limitation, the use of the Proceeds from the Pledge of the Collateral Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II;
(o) except as would not reasonably be expected to constitute a Material Adverse Effect, (i) the present value of all benefits vested under all Pension Plans of the Collateral Manager does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the most recent annual financial statements reflecting such amounts), (ii) no Reportable Events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Collateral Manager to any material tax, penalty or other liability and (iii) no notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
(p) neither the Collateral Manager nor any Affiliate of the Collateral Manager is (i) a country, territory, organization, person or entity named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns;
(q) the Collateral Manager is not a broker-dealer under the provisions of the Exchange Act;
(r) the Collateral Manager is regulated as a business development company under the 1940 Act; and
(s) except as otherwise permitted in the LSA, each Loan selected by the Collateral Manager for purchase by the Company shall be an Eligible Loan at the time of such purchase.
Appears in 1 contract
Samples: Collateral Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the provisions of the Indenture applicable to the Collateral Manager;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager, Manager conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager; and;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the provisions of the Indenture applicable to the Collateral Manager, except such as have been duly made or obtained; and
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Collateral Management Agreement (Granite Point Mortgage Trust Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained;
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(g) the Collateral Manager is registered with the U.S. Securities and Exchange Commission (“SEC”) as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”), pursuant to a single Form ADV filed by Divco West Real Estate Services, LLC (“DivcoWest”), in reliance on the position expressed by the SEC in its January 18, 2012 letter to the Subcommittee on Hedge Funds of the Federal Regulation of Securities Committee of the American Bar Association, 2012 SEC No-Act. LEXIS 21 (the “ABA Letter”);
(h) the Collateral Manager is a wholly-owned subsidiary of DivcoWest and is therefore “controlled by” DivcoWest for purposes of the ABA Letter;
(i) the Collateral Manager and DivcoWest conduct a “single advisory business” for purposes of the ABA Letter based, among other things, on the facts that:
(i) DivcoWest and the Collateral Manager advise only private funds (as defined in Section 202(a)(29) of the Advisers Act) and limited liability companies that exclusively hold real property;
(ii) the Collateral Manager, its employees and the persons acting on its behalf are subject to DivcoWest’s supervision and control and therefore the Collateral Manager, its employees and the persons acting on its behalf are “persons associated with” DivcoWest (as defined in Section 202(a)(17) of the Advisers Act);
(iii) DivcoWest has its principal office and place of business in the United States and all of the substantive provisions of the Advisers Act and the rules thereunder therefore apply to the Collateral Manager’s dealings with each of its clients, whether or not those clients are U.S. persons;
(iv) the advisory activities of the Collateral Manager are subject to the Advisers Act and the rules thereunder, and the Collateral Manager is subject to examination by the SEC;
(v) DivcoWest and the Collateral Manager operate under a single Code of Ethics adopted in accordance with Advisers Act Rule 204A-1 and a single set of written policies and procedures adopted and implemented in accordance with Advisers Act Rule 206(4)-(7) and administered by a single Chief Compliance Officer in accordance with that rule. Such Code of Ethics is administered as if DivcoWest and the Collateral Manager are part of a single entity; and
(vi) DivcoWest discloses in the Miscellaneous Section of Schedule D of the Form ADV that it has filed with the SEC that it and the Collateral Manager are together filing a single Form ADV in reliance on the position expressed in the ABA Letter; and DivcoWest has completed a separate Section 1.B., Schedule D, of such Form ADV for the Collateral Manager, which Section 1.B. identifies the Collateral Manager with the notation “(relying adviser)”;
(j) Parts 1 and 2 of the Form ADV filed with the SEC by DivcoWest, as well as any other reports or filings made by DivcoWest under the Advisers Act, contain all required information regarding the Collateral Manager;
(k) each of DivcoWest and the Collateral Manager is eligible to register with the SEC under the Advisers Act pursuant to one or more of Items 2.A. of Part 1A of the Form ADV; and
(l) the Collateral Manager is in compliance with all of the provisions of the Advisers Act and the rules thereunder that apply to SEC-registered investment advisers and are applicable to the Collateral Manager’s advisory activities.
Appears in 1 contract
Samples: Collateral Management Agreement (LoanCore Realty Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, winding-up, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the performance by ability of the Collateral Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of perform its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; and
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtained.the
Appears in 1 contract
Samples: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderunder this Agreement or the Indenture, except such as have been duly made or obtained;
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(g) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the Commonwealth of Massachusetts, (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged currently engaged, and (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager; the Collateral Manager has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreement;
(c) provisions of the Indenture applicable to the Collateral Manager; this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(db) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal Federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(c) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or by which the Collateral Manager is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph subsection (ec), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fd) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained; and
(e) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gramercy Capital Corp)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Company, as of the Closing Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Determination Date and as of the date of each Borrowing Base Certificate delivered pursuant to the LSA that:
(a) the Collateral Manager is duly organized and validly existing under the laws of the State of Maryland and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase AgreementTransaction Documents;
(b) the Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase AgreementTransaction Documents applicable to the Collateral Manager;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder Applicable Law or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatenedthreatened (i) asserting the invalidity of this Agreement or any other Transaction Document to which the Collateral Manager is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Collateral Manager is a party, (iii) seeking any determination or ruling that in either case could reasonably be expected to adversely affect the Transaction Documents or the transactions contemplated hereby or thereby, or (iv) that would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organizationincorporation, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, or (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andApplicable Law;
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtainedobtained and there is no injunction, writ, restraining order or other order of any nature that adversely affects the Collateral Manager’s performance of its obligations under any Transaction Document to which it is a party;
(g) all information, financial statements of the Collateral Manager, documents, books, records or reports furnished by the Collateral Manager to any Secured Party in connection with this Agreement are true, complete and correct in all material respects; provided that the Collateral Manager makes no representation with respect to any information furnished by an Obligor unless it has also certified as to such information;
(h) the Collateral Manager acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Portfolio transferred or Pledged hereunder are held and shall be held in trust for the benefit of the Secured Parties until deposited into the Collection Account within one (1) Business Day from receipt as required under the LSA;
(i) the Collateral Manager is not the subject of any Bankruptcy Proceeding or Bankruptcy Event. The transactions under this Agreement and any other Transaction Document to which the Collateral Manager is a party do not and will not render it not Solvent;
(j) with respect to each item of Underlying Collateral as of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, to the actual knowledge of an Authorized Person of the Collateral Manager: (a) none of the related Obligor’s operations is the subject of a material Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (b) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment. As of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, the Collateral Manager has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Collateral Manager have knowledge or reason to believe that any such notice will be received or is being threatened, in each case except as otherwise notified to the Administrative Agent in writing.
(k) the Collection Account is the only account to which Obligors have been instructed by the Collateral Manager to send Principal Collections and Interest Collections on the Collateral Portfolio;
(l) no event has occurred which constitutes a Collateral Manager Event of Default;
(m) the execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” act or similar law by the Collateral Manager;
(n) none of the transactions contemplated herein or the other Transaction Documents (including, without limitation, the use of the Proceeds from the Pledge of the Collateral Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II;
(o) except as would not reasonably be expected to constitute a Material Adverse Effect, (i) the present value of all benefits vested under all Pension Plans of the Collateral Manager does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the most recent annual financial statements reflecting such amounts), (ii) no Reportable Events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Collateral Manager to any material tax, penalty or other liability and (iii) no notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
(p) neither the Collateral Manager nor any Affiliate of the Collateral Manager is (i) a country, territory, organization, person or entity named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns;
(q) the Collateral Manager is not a broker-dealer under the provisions of the Exchange Act;
(r) the Collateral Manager is regulated as a business development company under the 1940 Act; and
(s) except as otherwise permitted in the LSA, each Loan selected by the Collateral Manager for purchase by the Company shall be an Eligible Loan at the time of such purchase.
Appears in 1 contract
Samples: Collateral Management Agreement (FS Investment Corp II)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Company, as of the Closing Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Determination Date and as of the date of each Borrowing Base Certificate delivered pursuant to the LSA that:
(a) the Collateral Manager is duly organized and validly existing under the laws of the State of Maryland and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase AgreementTransaction Documents;
(b) the Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase AgreementTransaction Documents applicable to the Collateral Manager;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder Applicable Law or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatenedthreatened (i) asserting the invalidity of this Agreement or any other Transaction Document to which the Collateral Manager is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Collateral Manager is a party, (iii) seeking any determination or ruling that in either case could reasonably be expected to adversely affect the Transaction Documents or the transactions contemplated hereby or thereby, or (iv) that would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Transaction Documents applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles of organizationincorporation, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, or (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andApplicable Law;
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtainedobtained and there is no injunction, writ, restraining order or other order of any nature that adversely affects the Collateral Manager’s performance of its obligations under any Transaction Document to which it is a party;
(g) all information, financial statements of the Collateral Manager, documents, books, records or reports furnished by the Collateral Manager to any Secured Party in connection with this Agreement are true, complete and correct in all material respects when made; provided that the Collateral Manager makes no representation with respect to any information furnished by an Obligor unless it has also certified as to such information;
(h) the Collateral Manager acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Portfolio transferred or Pledged hereunder are held and shall be held in trust for the benefit of the Secured Parties until deposited into the Collection Account within one (1) Business Day from receipt as required under the LSA;
(i) the Collateral Manager is not the subject of any Bankruptcy Proceeding or Bankruptcy Event. The transactions under this Agreement and any other Transaction Document to which the Collateral Manager is a party do not and will not render it not Solvent;
(j) with respect to each item of Underlying Collateral as of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, to the actual knowledge of an Authorized Person of the Collateral Manager: (a) none of the related Obligor’s operations is the subject of a material Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (b) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment. As of the applicable Cut-Off Date for the Loan related to such Underlying Collateral, the Collateral Manager has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Collateral Manager have knowledge or reason to believe that any such notice will be received or is being threatened, in each case except as otherwise notified to the Administrative Agent in writing.
(k) the Collection Account is the only account to which Obligors have been instructed by the Collateral Manager to send Principal Collections and Interest Collections on the Collateral Portfolio;
(l) no event has occurred which constitutes a Facility Amortization Event;
(m) the execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” act or similar law by the Collateral Manager;
(n) none of the transactions contemplated herein or the other Transaction Documents (including, without limitation, the use of the Proceeds from the Pledge of the Collateral Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II;
(o) except as would not reasonably be expected to constitute a Material Adverse Effect, (i) the present value of all benefits vested under all Pension Plans of the Collateral Manager does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the most recent annual financial statements reflecting such amounts), (ii) no Reportable Events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Collateral Manager to any material tax, penalty or other liability and (iii) no notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
(p) neither the Collateral Manager nor any Affiliate of the Collateral Manager is (i) a country, territory, organization, person or entity named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns;
(q) the Collateral Manager is not a broker-dealer under the provisions of the Exchange Act;
(r) the Collateral Manager is regulated as a business development company under the 1940 Act; and
(s) except as otherwise permitted in the LSA, each Loan selected by the Collateral Manager for purchase by the Company shall be an Eligible Loan at the time of such purchase.
Appears in 1 contract
Samples: Collateral Management Agreement (FS Investment Corp III)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Collateral Custodian, the Administrative Agent, the Lenders and the Equity Investors that:
(a) the The Collateral Manager is duly organized and validly existing in good standing under the laws of Maryland and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws State of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;Delaware.
(b) the The Collateral Manager has full the power and authority to execute and deliver this Agreement and all of the other Transaction Documents to which it is a party and to perform its obligations under this Agreement and all of its obligations hereunder the other Transaction Documents to which it is a party and under the Global Master Repurchase Agreement;has taken all necessary action to authorize such execution, delivery and performance.
(c) this Agreement has been duly authorizedThe execution, executed delivery and delivered performance by the Collateral Manager of this Agreement and each other Transaction Document to which it is a party do not violate or conflict with any Applicable Law, contractual restrictions binding on or affecting it or any of its assets or any provision of its Governing Documents in each case, except to the extent that such violation or conflict would not have a Material Adverse Effect.
(d) All material governmental and other consents that are required to have been obtained by the Collateral Manager with respect to its execution, delivery and performance of this Agreement and each other Transaction Document to which it is a party have been obtained and are in full force and effect, and the Collateral Manager has complied in all material respects with all conditions of any such consents.
(e) Each of this Agreement and the other Transaction Documents to which the Collateral Manager is a party constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it the Collateral Manager in accordance with its terms, except that the enforceability thereof may be such agreement’s respective terms (subject to (i) applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to affecting creditors’ rights generally and (ii) general subject, as to enforceability, to equitable principles of equity general application (regardless of whether such enforcement is considered sought in a proceeding in equity or at law);).
(df) neither There is not pending or, to the Collateral Manager nor Manager’s knowledge, threatened against it any of its affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding at law or in equity or before any Governmental Authority that is likely to affect the legality, validity or enforceability against it of this Agreement or any other Transaction Document to which it is a party or its ability (as a matter of law) to perform its obligations under this Agreement or any such other Transaction Document which could have a Material Adverse Effect.
(g) Each Funding Notice, Eligibility Criteria Compliance Certificate, Daily Report, Monthly Report and Monthly Loan File and all other written information, reports, certificates and statements (other than projections and forward-looking statements) provided or furnished by or on behalf of the Collateral Manager to any courtSecured Party for purposes of or in connection with this Agreement are, exchange as of the date on which such Funding Notice, Eligibility Criteria Compliance Certificate, Daily Report, Monthly Report, Monthly Loan File, information, report, certificate or regulatory agency pending orstatement is provided, true and correct in all material respects and do not omit to state a material fact necessary to make the Funding Notice, Eligibility Criteria Compliance Certificate, Daily Report, Monthly Report, Monthly Loan File, information or statements contained therein not misleading; provided that (i) to the extent any such information or statements (other than projections and forward-looking statements) were furnished to the Borrower Parties or the Collateral Manager, as applicable, by a related Obligor or any other third party, such information or statements are true and correct in all material respects (and do not omit to state a material fact necessary to make such information or statements not misleading) to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by Borrower Parties or the Collateral Manager of its duties under this Agreement;
and (eii) neither the execution all projections and delivery of this Agreement, nor the performance forward-looking statements provided or furnished by or on behalf of the terms hereof or the provisions Borrower Parties to any Secured Party were, as of the Global Master Repurchase Agreement applicable to date on which such projections and/or forward looking statements were provided, prepared (A) reasonably and in good faith by the Borrower Parties or the Collateral Manager, conflicts with or results as applicable, in light of the information then available to the Borrower Parties and the Collateral Manager and (B) in a material breach manner consistent with projections and forward-looking statements prepared by the Borrower Parties and the Collateral Manager for their own internal use.
(h) The Collateral Manager is not a Registered Investment Adviser and is not otherwise subject to the Advisers Act. The Collateral Manager makes no representation, express or violation of any of implied, with respect to the material terms Borrower Parties or provisions of, or constitutes a material default under, the disclosure with respect to the Borrower Parties.
(i) its articles The Initial Equity Investor shall, at all times, hold 100.00% of organizationthe Preference Shares and the Membership Interests of the Borrower, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance unless otherwise agreed by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable Administrative Agent (such consent not to the Collateral Manager; and
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtainedbe unreasonably withheld).
Appears in 1 contract
Samples: Revolving Loan Agreement (Owl Rock Core Income Corp.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, USActive 56230836.6 8 moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any that would have a material listing requirements adverse effect upon the ability of any exchange on which it is listed the Collateral Manager to perform its duties under this Agreement and the provisions of the Indenture applicable to the Collateral Manager, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the provisions of the Indenture applicable to the Collateral Manager;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager, Manager conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager; and;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained;
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(g) the Collateral Manager is a registered investment adviser under the Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Lument Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company that:
(a) the Collateral Manager is duly organized and validly existing under the laws of Maryland Delaware and has the full power and authority to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement other Loan Documents applicable to the Collateral Manager would require, such qualification, except for failures to be so qualified, authorized or licensed which would not not, in the aggregate aggregate, have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreementsuch other Loan Documents;
(b) the Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreementother Loan Documents applicable to the Collateral Manager;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding Proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any contract or agreement to which it is a party or by which it or any of its property may be bound, federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding Proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement other Loan Documents applicable to the Collateral Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its articles declaration of organizationtrust, bylaws or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andsuch other Loan Documents;
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it of its duties hereunder, except such as have been duly made or obtained.
Appears in 1 contract
Samples: Collateral Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Collateral Manager. The Collateral Manager hereby represents and warrants to the Company thatIssuer as follows:
(ai) the The Collateral Manager is a limited partnership duly organized and organized, validly existing and in good standing under the laws of Maryland the State of Delaware and has the full power and authority to own its assets and to transact the business in which it is presently currently engaged and is duly qualified as a foreign limited partnership and is in good standing under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, require such qualification, except for failures those jurisdictions in which the failure to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, of this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) the Collateral Manager has full power and authority Indenture applicable to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Global Master Repurchase Agreement;
(c) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium ; or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) neither the Collateral Manager nor any of its affiliates is in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would have a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement;hereunder or thereunder. The Collateral Manager is an institutional asset manager of national standing.
(eii) neither The Collateral Manager is a registered investment adviser under the execution Advisers Act.
(iii) The Collateral Manager has the necessary power and delivery of authority to execute, deliver and perform this Agreement, nor the performance of the terms hereof or Agreement and all obligations required hereunder and under the provisions of the Global Master Repurchase Indenture applicable to the Collateral Manager and has taken all necessary action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Indenture applicable to the Collateral Manager, conflicts with or results in a material breach or violation . No consent of any other person, including, without limitation, creditors of the material terms Collateral Manager, and no license, permit, approval or provisions authorization of, exemption by, notice or constitutes a material default underreport to, (i) its articles or registration, filing or declaration with, any governmental authority is required by the Collateral Manager in connection with this Agreement or the execution, delivery, performance, validity or enforceability of organization, bylaws this Agreement or other constituent document, (ii) the obligations required hereunder or under the terms of any material indenturethe Indenture applicable to the Collateral Manager. This Agreement has been, contractand each instrument and document required hereunder or under the terms of the Indenture, leasewill be, mortgageexecuted and delivered by a duly authorized officer of the Collateral Manager, deed and this Agreement constitutes, and each instrument and document required hereunder or under the terms of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Indenture when executed and delivered by the Collateral Manager is a party hereunder or is boundunder the terms of the Indenture, will constitute, the valid and legally binding obligations of the Collateral Manager enforceable against the Collateral Manager in accordance with their terms, subject, as to enforcement, to (iiiA) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any statute bankruptcy, receivership, insolvency or similar event applicable to the Collateral Manager and (B) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iv) any law, decree, order, rule or regulation applicable to the The Collateral Manager Information contained in the final Offering Circular as of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its propertiesdate, and which would haveas of the Closing Date does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Collateral Manager of its duties under this Agreement or the provisions light of the Global Master Repurchase Agreement applicable to the Collateral Manager; and
(f) no consentcircumstances under which they were made, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it of its duties hereunder, except such as have been duly made or obtainednot misleading.
Appears in 1 contract
Samples: Collateral Management Agreement (MSD Investment Corp.)
Representations and Warranties of the Collateral Manager. The Collateral Manager hereby represents and warrants to the Company thatIssuer as follows:
(a) the The Collateral Manager is a limited partnership duly organized and validly existing and in good standing under the laws of Maryland the State of Delaware, and has the full power and authority to own its assets and to transact the business in which it is presently currently engaged and is duly qualified and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager would require, require such qualification, except for failures those jurisdictions in which the failure to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;Indenture applicable to the Collateral Manager.
(b) the The Collateral Manager has full power and authority to execute and deliver this Agreement and to perform all of its obligations required hereunder and under the Global Master Repurchase Agreement;provisions of the Indenture applicable to the Collateral Manager, and has taken all necessary action to authorize this Agreement on the terms and conditions hereof and the execution, delivery and performance of this Agreement and all obligations required hereunder and under the terms of the Indenture applicable to the Collateral Manager.
(c) this This Agreement has been duly authorized, executed and delivered by a duly authorized officer of the Collateral Manager and constitutes a the valid and legally binding agreement obligations of the Collateral Manager, Manager enforceable against it the Collateral Manager in accordance with its terms, except that the enforceability thereof may be subject to (i) bankruptcy, insolvency, winding-up, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);.
(d) neither No consent of any other Person and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Collateral Manager nor any in connection with this Agreement or the execution, delivery, performance, validity and enforceability of its affiliates this Agreement or the obligations required hereunder and under the terms of the Indenture applicable to the Collateral Manager.
(e) The Collateral Manager is not in violation of any federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency court pending or, to the best knowledge of the Collateral Manager, threatenedthreatened that, that in either case if determined adversely to the Collateral Manager, would have a material adverse effect upon the performance by the Collateral Manager of its duties under under, or on the validity or enforceability of, this Agreement;
(e) neither the execution Agreement and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement Indenture applicable to the Collateral Manager hereunder.
(f) The execution, delivery and performance of this Agreement and the terms of the Indenture applicable to the Collateral Manager and the documents and instruments required thereunder or under the terms of the Indenture will not violate any provision of any existing law or regulation binding on the Collateral Manager, conflicts with or results in a material breach any order, judgment, award or violation decree of any of court, arbitrator or governmental authority binding on the material terms Collateral Manager, or provisions the organizational documents of, or constitutes a material default under, (i) its articles of organization, bylaws any securities issued by the Collateral Manager or other constituent document, (ii) the terms of any material mortgage, indenture, contract, lease, mortgage, deed of trust, note agreement contract or other evidence of indebtedness or other material agreement, obligation, condition, covenant instrument or instrument undertaking to which the Collateral Manager is a party or is by which the Collateral Manager or any of its assets may be bound, (iii) any statute the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager or its ability to perform its obligations under this Agreement and the terms of the Indenture applicable to the Collateral Manager Manager, and will not result in or (iv) require the creation or imposition of any lawlien on any of the Collateral Manager’s property, decree, order, rule assets or regulation applicable revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking.
(g) The Collateral Manager is not in violation of its organizational documents, or in breach or violation of or in default under any contract or agreement to which it is a party or by which it or any of its property may be bound, or any applicable statute or any rule, regulation or order of any court court, government agency or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and the breach or violation of which or default under which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), have a material adverse effect upon on the validity or enforceability of this Agreement or the provisions of the Indenture applicable to the Collateral Manager, or the performance by the Collateral Manager of its duties under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andthereunder.
(fh) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person The Collateral Manager is required for registered as an “investment adviser” under the performance by it of its duties hereunder, except such as have been duly made or obtainedInvestment Advisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Collateral Manager. The Collateral Manager represents and warrants to the Company Issuer that:
(a) the Collateral Manager (i) has been duly organized, is duly organized and validly existing and is in good standing under the laws of Maryland and the State of Delaware; (ii) has the full power and authority to own the Collateral Manager’s assets and to transact the business in which it is presently engaged and currently engaged; (iii) is duly qualified and in good standing under the laws of each jurisdiction where the Collateral Manager’s ownership or lease of property or the conduct of its the Collateral Manager’s business requires, or the performance of its obligations under this Agreement and the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager Indenture would require, such qualification, except for failures to be so qualified, authorized or licensed which qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Collateral Manager, Manager or on the ability of the Collateral Manager to perform its obligations under, or on the validity or enforceability of, this Agreement and the applicable provisions of the Global Master Repurchase Agreement;
(b) Indenture applicable to the Collateral Manager Manager; and (iv) has full power and authority to execute execute, deliver and deliver perform this Agreement and to perform all of its the Collateral Manager’s obligations hereunder and under the Global Master Repurchase Agreementprovisions of the Indenture applicable to the Collateral Manager;
(cb) this Agreement has been duly authorized, executed and delivered by the Collateral Manager and constitutes a legal, valid and binding agreement of the Collateral Manager, enforceable against it in accordance with its termsthe terms hereof, except that the enforceability thereof hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(dc) neither the Collateral Manager nor any of its affiliates Affiliates is in violation of any federal or state securities law or regulation promulgated thereunder that would have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or any material listing requirements of any exchange on which it is listed the Indenture, and there is no charge, investigation, action, suit or proceeding before or by any court, exchange court or regulatory agency pending or, to the best knowledge of the Collateral Manager, threatened, that in either case would threatened which could reasonably be expected to have a material adverse effect upon the ability of the Collateral Manager to perform its duties under this Agreement or the Indenture;
(d) neither the execution and delivery of this Agreement nor the performance by the Collateral Manager of its duties hereunder or under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager, Indenture conflicts with or results will violate or result in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, : (i) its articles the limited liability company agreement of organization, bylaws or other constituent documentthe Collateral Manager, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Collateral Manager is a party or is bound, (iii) any statute applicable to the Collateral Manager or (iv) any law, decree, order, rule or regulation applicable to the Collateral Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Collateral Manager or its properties, and which would have, in the case of any of clauses (i), (ii) through or (iviii) of this paragraph (eSection 5(d), either individually or in the aggregate, a material adverse effect upon on the performance by business, operations, assets or financial condition of the Collateral Manager or the ability of the Collateral Manager to perform its duties obligations under this Agreement or the provisions of the Global Master Repurchase Agreement applicable to the Collateral Manager; andIndenture;
(fe) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person Person is required for the performance by it the Collateral Manager of its duties hereunderhereunder and under the Indenture, except such as have been duly made or obtained; and
(f) the Section entitled “The Collateral Manager” in the Offering Memorandum, as of the date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Collateral Management Agreement (Granite Point Mortgage Trust Inc.)
