Representations and Warranties of the Company and the Adviser. The Company, and, solely for purposes of Section 1(l), the Adviser, hereby represent and warrant to the Dealer Manager and each Participating Broker-Dealer with whom the Dealer Manager enters into a participating broker-dealer agreement (each, a “Participating Broker-Dealer Agreement”), in such form to be agreed between the Company and the Dealer Manager, that, as of the date of this Agreement and at all times during the Offering Period (as defined below) (provided that, to the extent such representations and warranties are given only as of a specified date or dates, the Company and, solely for purposes of Section 1(l), the Adviser only make such representations and warranties as of such specified date or dates): (a) The Company has prepared the Memorandum and all other information required for the sale of the Shares in accordance in all material respects with all applicable requirements of the Securities Act, and all applicable rules and regulations of the SEC promulgated thereunder (collectively, the “Securities Act Regulations”). (b) The Memorandum and any amendments or supplements thereto will, as of each closing date for the Offering of the applicable class of Shares (each, a “Closing”), comply in all material respects with any applicable requirements of the Securities Act and the Securities Act Regulations; the Memorandum does not, and any amendments or supplements thereto will not, as of the applicable Closing, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Memorandum, or any amendments or supplements thereto, made in reliance upon and in conformity with information furnished in writing to the Company by the Dealer Manager or any Participating Broker-Dealers expressly for use in the Memorandum, or any amendments or supplements thereto. (c) The Company has been duly and validly organized and formed as a statutory trust under the laws of the state of Maryland, with full power and authority to conduct its business as described in the Memorandum. (d) As of the date of this Agreement, the Company has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 6 of this Agreement may be limited under applicable securities laws. (e) Unless otherwise described in the Memorandum, as such Memorandum may be amended, supplemented or restated from time to time, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company, or any judgment in effect at law or in equity or before or by any federal or state commission, regulatory body or administrative agency, or other governmental body, domestic or foreign, that would reasonably be expected to have a material adverse effect on the ability of the Company to perform its obligations hereunder. (f) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Company will not conflict with or constitute a default under: (i) the Company’s declaration of trust (as may be amended, modified or supplemented from time to time, the “Declaration of Trust”) or bylaws, (ii) any indenture, mortgage, deed of trust or lease to which the Company is a party or by which the Company or any of its properties is bound, (iii) any law, rule or regulation applicable to the Company, or (iv) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company, except in the cases of clauses (ii), (iii) and (iv), for such conflicts or defaults that, individually or in the aggregate, would not reasonably be expected to result in a material adverse effect on the ability of the Company to perform its obligations hereunder. (g) Except as have been obtained or waived, no material consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Company of this Agreement or the issuance and sale by the Company of the Shares, except for (i) any necessary qualification or registration under the securities or blue sky laws of the jurisdictions in which the Shares will be offered by the Dealer Manager and the Participating Broker-Dealers, or the establishment of preemption or an exemption from such qualification or registration requirements, and (ii) any filing and approval required pursuant to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) contained in its rulebook (the “FINRA Rules”). (h) At the time of the issuance of the Shares, the Shares will have been duly authorized and, when issued and sold as contemplated by the Memorandum and the Declaration of Trust, and upon payment therefor as provided by the Memorandum and this Agreement, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Memorandum. (i) The Company does not intend to conduct its business so as to be considered an “investment company” (as that term is defined in the Investment Company Act, and the rules and regulations thereunder), and it will exercise reasonable diligence to ensure that it does not become an “investment company” within the meaning of the Investment Company Act. (j) Any and all printed sales literature or other materials in connection with the Offering that are prepared by the Company and/or the Dealer Manager, and that have been approved in advance, in writing, by the Company specifically for use with potential investors in connection with the Offering (and such approval has not been subsequently withdrawn pursuant to Section 14 below) (collectively, “Authorized Sales Materials”), when used in conjunction with the Memorandum, did not at the time provided for use, and, as to later provided materials, will not at the time provided for use, include any untrue statement of a material fact, nor did they at the time provided for use, or, as to later provided materials, will they at the time provided for use, omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made and when read in conjunction with the Memorandum, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Authorized Sales Materials made in reliance upon, and in conformity with, information furnished in writing to the Company by the Dealer Manager or any Participating Broker-Dealers expressly for use in any Authorized Sales Materials. (k) To the Company’s knowledge, none of the Company, the Adviser, or any of their respective affiliates, officers or directors has, within the six (6) calendar months preceding the date of this Agreement, sold or offered for sale any securities that may be “integrated” with the Offering within the meaning of Rule 502(a) of Regulation D promulgated under the Securities Act, other than sales of securities to “accredited investors” that would not prevent the Offering from qualifying for the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act. (l) The Company and the Adviser are not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act and will not be disqualified from relying on the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act with regard to the offer and sale of the Shares by the occurrence or issuance of any conviction, order, judgment, decree, suspension, injunction, expulsion or bar described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act (each, a “Company Disqualifying Event”), except for a Company Disqualifying Event covered by Rule 506(d)(2) or (3) of Regulation D promulgated under the Securities Act. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Dealer Manager and any Participating Broker-Dealers a copy of any disclosures provided thereunder. The Company will notify the Dealer Manager and Participating Broker-Dealers of the occurrence or issuance of any Company Disqualifying Event of which the Company becomes aware.
Appears in 1 contract
Samples: Dealer Manager Agreement (Fortress Credit Realty Income Trust)
Representations and Warranties of the Company and the Adviser. The Company, and, solely for purposes of Section 1(l1(m), the Adviser, hereby represent and warrant to the Dealer Manager and each Participating Broker-Dealer with whom the Dealer Manager enters into a participating broker-dealer agreement (each, a “Participating Broker-Dealer Agreement”), in such form to be agreed between the Company and the Dealer Manager, that, as of the date of this the Original Agreement and at all times during the Offering Period (as defined below) (provided that, to the extent such representations and warranties are given only as of a specified date or dates, the Company and, solely for purposes of Section 1(l1(m), the Adviser only make such representations and warranties as of such specified date or dates):
(a) The Company has prepared the Memorandum and all other information required for the sale of the Shares in accordance in all material respects with all applicable requirements of the Securities Act, and all applicable rules and regulations of the SEC promulgated thereunder (collectively, the “Securities Act Regulations”).
(b) The Memorandum and any amendments or supplements thereto will, as of each closing date for the Offering of the applicable class of Shares (each, a “Closing”), comply in all material respects with any applicable requirements of the Securities Act and the Securities Act Regulations; the Memorandum does not, and any amendments or supplements thereto will not, as of the applicable Closing, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Memorandum, or any amendments or supplements thereto, made in reliance upon and in conformity with information furnished in writing to the Company by the Dealer Manager or any Participating Broker-Dealers expressly for use in the Memorandum, or any amendments or supplements thereto.
(c) The Company has been duly and validly organized and formed as a statutory trust under the laws of the state of Maryland, with full power and authority to conduct its business as described in the Memorandum.
(d) As of the date of this Agreement, the Company has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 6 of this Agreement may be limited under applicable securities laws.
(e) Unless otherwise described in the Memorandum, as such Memorandum may be amended, supplemented or restated from time to time, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company, or any judgment in effect at law or in equity or before or by any federal or state commission, regulatory body or administrative agency, or other governmental body, domestic or foreign, that would reasonably be expected to have a material adverse effect on the ability of the Company to perform its obligations hereunder.
(f) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Company will not conflict with or constitute a default under: (i) the Company’s declaration of trust (as may be amended, modified or supplemented from time to time, the “Declaration of Trust”) or bylaws, (ii) any indenture, mortgage, deed of trust or lease to which the Company is a party or by which the Company or any of its properties is boundCompany, (iii) any law, rule or regulation applicable to the Company, or (iv) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company, except in the cases of clauses (ii), (iii) and (iv), for such conflicts or defaults that, individually or in the aggregate, would not reasonably be expected to result in a material adverse effect on the ability of the Company to perform its obligations hereunder.
(g) Except as have been obtained or waived, no material consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Company of this Agreement or the issuance and sale by the Company of the Shares, except for (i) any necessary qualification or registration under the securities or blue sky laws of the jurisdictions in which the Shares will be offered by the Dealer Manager and the Participating Broker-Dealers, or the establishment of preemption or an exemption from such qualification or registration requirements, and (ii) any filing and approval required pursuant to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) contained in its rulebook (the “FINRA Rules”).
(h) At the time of the issuance of the Shares, the Shares will have been duly authorized and, when issued and sold as contemplated by the Memorandum and the Declaration of Trust, and upon payment therefor as provided by the Memorandum and this Agreement, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Memorandum.
(i) The Company does not intend to conduct its business so as to be considered an “investment company” (as that term is defined in the Investment Company Act, and the rules and regulations thereunder), and it will exercise reasonable diligence to ensure that it does not become an “investment company” within the meaning of the Investment Company Act.
(j) Any and all printed sales literature or other materials in connection with the Offering that are prepared by the Company and/or the Dealer Manager, and that have been approved in advance, in writing, by the Company specifically for use with potential investors in connection with the Offering (and such approval has not been subsequently withdrawn pursuant to Section 14 below) (collectively, “Authorized Sales Materials”), when used in conjunction with the Memorandum, did not at the time provided for use, and, as to later provided materials, will not at the time provided for use, include any untrue statement of a material fact, nor did they at the time provided for use, or, as to later provided materials, will they at the time provided for use, omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made and when read in conjunction with the Memorandum, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Authorized Sales Materials made in reliance upon, and in conformity with, information furnished in writing to the Company by the Dealer Manager or any Participating Broker-Dealers expressly for use in any Authorized Sales Materials.
(k) The Company has entered into an escrow agreement with the Dealer Manager and UMB Bank, N.A., as escrow agent (the “Escrow Agent”), which provides for the establishment of an escrow account into which subscribers’ funds will be deposited, prior to each Closing until the Minimum Offering Requirement (as defined below) has been satisfied, pursuant to the subscription procedures described in Section 15 below (the “Escrow Account”).
(l) To the Company’s knowledge, none of the Company, the Adviser, or any of their respective affiliates, officers or directors has, within the six (6) calendar months preceding the date of this the Original Agreement, sold or offered for sale any securities that may be “integrated” with the Offering within the meaning of Rule 502(a) of Regulation D promulgated under the Securities Act, other than sales of securities to “accredited investors” that would not prevent the Offering from qualifying for the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act.
(lm) The Company and the Adviser are not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act and will not be disqualified from relying on the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act with regard to the offer and sale of the Shares by the occurrence or issuance of any conviction, order, judgment, decree, suspension, injunction, expulsion or bar described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act (each, a “Company Disqualifying Event”), except for a Company Disqualifying Event covered by Rule 506(d)(2) or (3) of Regulation D promulgated under the Securities Act. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Dealer Manager and any Participating Broker-Dealers a copy of any disclosures provided thereunder. The Company will notify the Dealer Manager and Participating Broker-Dealers of the occurrence or issuance of any Company Disqualifying Event of which the Company becomes aware.
Appears in 1 contract
Representations and Warranties of the Company and the Adviser. The CompanyCompany represents and warrants to and agrees with, andand the Adviser represents and warrants to and agrees with, solely for purposes each Underwriter (i) as of Section 1(l)the date hereof, the Adviser, hereby represent and warrant to the Dealer Manager and each Participating Broker-Dealer with whom the Dealer Manager enters into a participating broker-dealer agreement Initial Sale Time (each, a “Participating Broker-Dealer Agreement”as defined below), in such form to be agreed between the Company and the Dealer Manager, that, as of the date of this Agreement Closing Time and at all times during the Offering Period (as defined below) (provided that, to the extent such representations and warranties are given only as of a specified date any Option Closing Time, if any, or dates, the Company and, solely for purposes of Section 1(l), the Adviser only make such representations and warranties (ii) as of the time or times otherwise specified in such specified date representation or dates):warranty, as follows:
(a) The Registration Statement has been prepared by the Company has prepared in conformity with the Memorandum and all other information required for the sale of the Shares in accordance in all material respects with all applicable requirements of the Securities Act, has been filed with the Commission and all applicable rules has been declared effective. The Company meets the requirements of and regulations complies with the conditions for the use of Form N-2 under the Securities Act. Copies of the SEC promulgated thereunder Registration Statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Securities Act) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to the Representative. As of the Initial Sale Time, the Preliminary Prospectus and the pricing term sheet set forth in Schedule II hereto, all considered together (collectively, the “Securities Act Regulations”).
(b) The Memorandum and any amendments or supplements thereto will, as of each closing date for the Offering of the applicable class of Shares (each, a “ClosingGeneral Disclosure Package”), comply in all material respects with any applicable requirements of the Securities Act and the Securities Act Regulations; the Memorandum does not, and any amendments or supplements thereto will not, as of the applicable Closing, contain did not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the General Disclosure Package or the Registration Statement in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriters through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 10(b) herein. As of the date set forth on its cover page (solely in the case of the Prospectus), the Closing Time and each Option Closing Time, the General Disclosure Package and the Prospectus will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation representations or warranty with respect warranties as to any statement information contained in or omitted from the MemorandumRegistration Statement, the General Disclosure Package or the Prospectus in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriters through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 10 herein. The Commission has not issued an order preventing or suspending the use of the Registration Statement, the Preliminary Prospectus or the Prospectus relating to the proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The Registration Statement contains, and the Prospectus and any amendments or supplements theretothereto contain and will contain, made all statements which are required to be stated therein by, and conform and will conform to the requirements of, the Securities Act. At the respective times the Registration Statement and any post-effective amendments thereto became effective and as of the Initial Sale Time, the Closing Time and each Option Closing Time (if any), the Registration Statement did not, and will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement and the Prospectus, or any such amendment or supplement, in reliance upon upon, and in conformity with with, written information furnished in writing to the Company by or on behalf of the Dealer Manager or any Participating Broker-Dealers expressly Underwriters through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 10 herein.
(b) the MemorandumCompany has an authorized capitalization as set forth in both the General Disclosure Package and the Prospectus under the caption “Capitalization,” at the date indicated, or any amendments or supplements thereto.as of the Initial Sale Time, at the Closing Time, and each Option Closing Time, if any;
(c) The all of the issued and outstanding shares of capital stock of the Company has have been duly and validly organized authorized and formed issued and are fully paid and non-assessable, and have not been issued in violation of or subject to any preemptive right, resale right, right of first refusal or other similar right of stockholders arising by operation of law, under the certificate of incorporation, bylaws, Certificate of Designation or other applicable governing document (collectively, the “Charter Documents”) of the Company, under any agreement to which the Company is a party or otherwise; except as disclosed in both the General Disclosure Package and the Prospectus, there are no outstanding (x) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (y) warrants, rights or options to subscribe for or purchase from the Company any such capital stock, partnership interest, or membership interest or any such convertible or exchangeable securities or obligations, or (z) obligations of the Company to issue or sell any shares of capital stock, partnership interest, or membership interest, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(d) the Company is a statutory trust Delaware corporation duly incorporated and validly existing and in good standing under the laws of the state State of MarylandDelaware, with full requisite corporate power and authority to own, lease or operate its properties and to conduct its business as described in the Memorandum.
(d) As of the date of this AgreementRegistration Statement, the Company has full legal right, power General Disclosure Package and authority to enter into this Agreement the Prospectus and to execute and deliver and perform its obligations under the Company Agreements and to consummate the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 6 of this Agreement may be limited under applicable securities laws.therein;
(e) Unless the Company is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it conducts its business, or in which it owns or leases real property or otherwise described maintains an office, and in which such qualification or licensing is necessary and in which the failure, individually or in the Memorandum, as such Memorandum may be amended, supplemented or restated from time to time, there are no actions, suits or proceedings pending oraggregate, to the knowledge of the Company, threatened against the Company, be so qualified or any judgment in effect at law or in equity or before or by any federal or state commission, regulatory body or administrative agency, or other governmental body, domestic or foreign, that licensed would reasonably be expected to have a material adverse effect on the ability assets, business, operations, earnings, properties or condition (financial or otherwise), present or prospective, of the Company to perform its obligations hereunder.(any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or a “Material Adverse Change”); other than as disclosed in both the General Disclosure Package and the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
(f) The execution the Company, subject to the filing of the Prospectus under Rule 424(b), has taken all required action under the Securities Act and delivery the 1940 Act to make the public offering of Shares contemplated by this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by ;
(g) the Company will is in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
(h) the Company is not conflict in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under: under or give the holder of any indebtedness (ior a person acting on such holder’s behalf) the Company’s declaration right to require the repurchase, redemption or repayment of trust (as may be amendedall or part of such indebtedness under), modified its Charter Documents or supplemented from time to timein the performance or observance of any obligation, the “Declaration of Trust”) agreement, covenant or bylawscondition contained in any contract, (ii) any license, indenture, mortgage, deed of trust trust, bank loan or lease credit agreement or other agreement or instrument to which the Company is a party or by which the Company it or any of its properties is bound, (iii) any law, rule bound or regulation applicable to the Company, or (iv) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Companyaffected, except in the cases of clauses (ii), (iii) and (iv), for such conflicts breaches or defaults thatwhich would not, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(i) the execution, delivery and performance by the Company of this Agreement and the issuance, sale and delivery of the Shares by the Company, the Company’s use of the proceeds from the sale of the Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus, the consummation by the Company of the transactions contemplated by the Company Agreements, and compliance by the Company with the terms and provisions hereunder and thereunder, will not: (x) conflict with, or result in any breach of, or constitute a default under (or constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (A) any provision of the Charter Documents of the Company, (B) any provision of any contract, license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company is a party or by which any of them or their respective properties may be bound or affected, or (C) any federal, state, local or foreign law, regulation, rule, decree, judgment or order (each a “Legal Requirement”) issued by the U.S. government or any state, local or foreign government, court, administrative agency or commission or other governmental agency, authority or instrumentality, domestic or foreign, of competent jurisdiction (each a “Governmental Authority”) applicable to the Company, except in the case of clauses (B) or (C) for such conflicts, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (y) result in the creation or imposition of any lien, charge, claim or encumbrance upon any material adverse effect on property or asset of the ability Company;
(j) each of the Company Agreements has been duly authorized, executed and delivered by the Company and constitutes legal, valid and binding agreements of the Company enforceable in accordance with their respective terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to perform its obligations hereunder.the extent that the indemnification and contribution provisions of Section 10 hereof or thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(gk) Except each of the Company Agreements complies in all material respects with all applicable provisions of the 1940 Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), the Company’s stockholders have been obtained approved the Investment Advisory Agreement as required by Section 15(a) of the 1940 Act and the Company’s board of directors has approved the Investment Advisory Agreement as required by Section 15(c) of the 1940 Act. The operations of the Company, as described in the General Disclosure Package and the Prospectus, are, and at all times through the Closing Time or waivedany Option Closing Time, if any, will be, in compliance in all material respects with the provisions of the 1940 Act. The provisions of the Charter Documents and the investment objective, policies and restrictions described in the General Disclosure Package and the Prospectus, assuming they are implemented as so described, comply, and at all times through the Closing Time or any Option Closing Time, as applicable, will comply in all material respects with the applicable requirements of the 1940 Act. The terms of the Investment Advisory Agreement, including compensation terms, comply with the provisions of Sections 15(a) and 15(c) of the 1940 Act and Section 205 of the Advisers Act;
(l) except as disclosed in the General Disclosure Package and the Prospectus, no material consentdirector of the Company is an “interested person” (as defined in the 1940 Act) of the Company or an “affiliated person” (as defined in the 1940 Act) of any Underwriter listed in Schedule I hereto;
(m) no (i) approval, authorization, consent or order of or filing with any Governmental Authority, (ii) authorization, approval, authorization vote or other order consent of any governmental authority holder of securities of the Company or any creditor of the Company, or (iii) waiver or consent under any material agreement is required in connection with the execution or Company’s execution, delivery by and performance of each of the Company Agreements, its consummation of the transactions contemplated by this Agreement or Agreement, and the issuance issuance, sale and sale by the Company delivery of the Shares, except for other than (iA) such as have been obtained, or will have been obtained at the Closing Time or the applicable Option Closing Time, as the case may be, under the Securities Act, the Exchange Act, the 1940 Act, the Advisers Act and the rules and regulations of Financial Industry Regulatory Authority (“FINRA”), (B) such approvals as may be required in connection with the approval of the listing of the Shares on the New York Stock Exchange and (C) any necessary qualification or registration under the securities or blue sky laws of the various jurisdictions in which the Shares will be are being offered by the Dealer Manager Underwriters;
(n) except as disclosed in the General Disclosure Package and the Participating Broker-DealersProspectus, or the establishment of preemption or an exemption from such qualification or registration requirementsCompany has all necessary licenses, permits, authorizations, accreditations, certifications, consents and approvals and has made all necessary filings required under any Legal Requirement, and (ii) any filing has obtained all necessary licenses, permits, authorizations, accreditations, certifications, consents and approval approvals from other persons required pursuant to the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) contained in its rulebook (the “FINRA Rules”).
(h) At the time of the issuance of the Shares, the Shares will have been duly authorized and, when issued and sold as contemplated by the Memorandum and the Declaration of Trust, and upon payment therefor as provided by the Memorandum and this Agreement, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Memorandum.
(i) The Company does not intend order to conduct its business so as described in both the General Disclosure Package and the Prospectus, except to be considered an “investment company” (as the extent that term is defined any failure to have any such licenses, permits, authorizations, accreditations, certifications, consents or approvals to make any such filings or to obtain any such licenses, permits, authorizations, accreditations, certifications, consents or approvals would not, individually or in the Investment Company Actaggregate, and the rules and regulations thereunder), and it will exercise reasonable diligence reasonably be expected to ensure that it does not become an “investment company” within the meaning of the Investment Company Act.
(j) Any and all printed sales literature or other materials in connection with the Offering that are prepared by have a Material Adverse Effect; the Company and/or the Dealer Manageris not in violation of, and that have been approved or in advancedefault under, in writingor has received any notice regarding a possible violation of, by the Company specifically for use with potential investors in connection with the Offering (and default under, or revocation of, any such license, permit, authorization, accreditation, certification, consent or approval has not been subsequently withdrawn pursuant to Section 14 below) (collectively, “Authorized Sales Materials”), when used in conjunction with the Memorandum, did not at the time provided for use, and, as to later provided materials, will not at the time provided for use, include or any untrue statement of a material fact, nor did they at the time provided for use, or, as to later provided materials, will they at the time provided for use, omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made and when read in conjunction with the Memorandum, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Authorized Sales Materials made in reliance upon, and in conformity with, information furnished in writing Legal Requirement applicable to the Company the effect of which would reasonably be expected to have a Material Adverse Change; and no such license, permit, authorization, accreditation, certification, consent or approval contains a materially burdensome restriction that is not adequately disclosed in both the General Disclosure Package and the Prospectus;
(o) the Registration Statement has been declared effective by the Dealer Manager Commission and any Rule 462(b) Registration Statement will have become effective upon filing, no stop order suspending the effectiveness of the Registration Statement or any Participating Broker-Dealers expressly Rule 462(b) Registration Statement has been issued by the Commission and no proceedings for use in any Authorized Sales Materials.
(k) To that purpose have been instituted or are pending or, to the Company’s knowledge, none knowledge of the Company, are contemplated or threatened by the AdviserCommission, or and the Company has complied to the Commission’s satisfaction with any request on the part of their respective affiliates, officers or directors has, within the six Commission for additional information;
(6p) calendar months preceding the General Disclosure Package when filed and the Registration Statement as of each effective date and as of the date of this Agreementhereof complied or will comply, sold and the Prospectus and any further amendments or offered for sale any securities that may be “integrated” supplements to the Registration Statement, the General Disclosure Package or the Prospectus, when they become effective or are filed with the Offering within Commission, as the meaning case may be, will comply, in all material respects with the requirements of Rule 502(a) of Regulation D promulgated under the Securities Act, other than sales of securities to “accredited investors” that would not prevent the Offering from qualifying for the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act.
(l) The Company Regulations and the Adviser are not subject to any of 1940 Act; the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act and will not be disqualified from relying on the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act with regard conditions to the offer use of Form N-2 in connection with this Offering and the sale of the Shares by the occurrence or issuance of any conviction, order, judgment, decree, suspension, injunction, expulsion or bar described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated under the Securities Act (each, a “Company Disqualifying Event”), except for a Company Disqualifying Event covered by Rule 506(d)(2) or (3) of Regulation D promulgated under the Securities Act. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Dealer Manager and any Participating Broker-Dealers a copy of any disclosures provided thereunder. The Company will notify the Dealer Manager and Participating Broker-Dealers of the occurrence or issuance of any Company Disqualifying Event of which the Company becomes aware.as contemplated hereby have been s
Appears in 1 contract
Samples: Underwriting Agreement (Pearl Diver Credit Co Inc.)
Representations and Warranties of the Company and the Adviser. The CompanyIn connection with the purchase and sale of the Securities, and, solely for purposes of Section 1(l), the Company and the Adviser, hereby jointly and severally, represent and warrant to the Dealer Manager and each Participating Broker-Dealer with whom the Dealer Manager enters into a participating broker-dealer agreement (each, a “Participating Broker-Dealer Agreement”), in such form to be agreed between the Company and the Dealer Manager, Purchaser that, as of the date of this Agreement and at all times during the Offering Period (as defined below) (provided that, to the extent such representations and warranties are given only as of a specified date or dates, the Company and, solely for purposes of Section 1(l), the Adviser only make such representations and warranties as of such specified date or dates)::
(a) The Registration Statement on Form N-2 (File No. 333-261274) with respect to the Securities has been prepared by the Company has prepared in conformity with the Memorandum and all other information required for the sale of the Shares in accordance in all material respects with all applicable requirements of the Securities 1933 Act, has been filed with the Commission and all applicable rules has been declared effective. The Company meets the requirements of and regulations complies with the conditions for the use of Form N-2 under the 1933 Act. Copies of the SEC promulgated thereunder (collectivelyRegistration Statement, including any amendments thereto, the “Securities Act Regulations”).
Base Prospectus (b) The Memorandum and any amendments or supplements thereto will, as of each closing date for meeting the Offering of the applicable class of Shares (each, a “Closing”), comply in all material respects with any applicable requirements of the Securities Act 1933 Act) contained therein and the Securities Act Regulations; the Memorandum does notexhibits, financial statements and any amendments or supplements thereto will notschedules, as finally amended and revised, have heretofore been delivered by the Company to such Purchaser. As of the applicable ClosingClosing Date, contain the Prospectus will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements madetherein, in light of the circumstances under which they were made, not misleading; provided. The Commission has not issued an order preventing or suspending the use of the Registration Statement or the Prospectus, howeverand no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been instituted or, that to the Company makes no representation or warranty with respect to any statement contained in Company’s knowledge, threatened by the MemorandumCommission. The Registration Statement contains, or and the Prospectus and any amendments or supplements theretothereto contain and will contain, made in reliance upon all statements which are required to be stated therein by, and in conformity with information furnished in writing conform and will conform to the Company by requirements of, the Dealer Manager or any Participating Broker-Dealers expressly for use in the Memorandum, or any amendments or supplements thereto1933 Act.
(cb) The Company has been is a Maryland corporation duly organized, validly existing and validly organized and formed as a statutory trust in good standing under the laws of the state jurisdiction of Maryland, with full power its organization and authority is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business as described in or the Memorandum.
(d) As ownership or leasing of the date of this Agreement, the Company has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated herebyproperty requires such qualification, except to the extent that the enforceability of the indemnity and/or contribution provisions contained failure to be so qualified or to be in Section 6 of this Agreement may be limited under applicable securities laws.
(e) Unless otherwise described good standing, individually or in the Memorandumaggregate, as such Memorandum may be amended, supplemented or restated from time to time, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Companywould not have, or any judgment in effect at law or in equity or before or by any federal or state commission, regulatory body or administrative agency, or other governmental body, domestic or foreign, that would reasonably be expected to have have, a material adverse effect on (i) the business, assets, prospects, properties, financial condition or results of operations of the Company and its affiliates, taken as a whole, or (ii) the power or ability of the Company to perform its obligations hereunderunder this Agreement, the Indenture, the Securities and the DTC Agreement (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”)).
(c) Each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and collectively, the “Subsidiaries”) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of such Subsidiary’s business or the ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to be in good standing, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(d) This Agreement has been duly authorized, executed and delivered by the Company.
(e) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law) (collectively, the “Enforceability Exceptions”).
(f) The execution DTC Agreement has been duly authorized, executed and delivery delivered by the Company and is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement, to the Enforceability Exceptions.
(g) The Securities have been duly authorized by the Company for sale to the Purchasers pursuant to this Agreement and, when executed and delivered by the Company and authenticated by the Trustee pursuant to the provisions of this Agreement and of the Indenture relating thereto, against payment of the consideration set forth in this Agreement, the consummation will be valid and legally binding obligations of the transactions herein contemplated and compliance with the terms of this Agreement by Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to the Enforceability Exceptions, and will not conflict with or constitute a default under: be entitled to the benefits of the Indenture relating thereto.
(h) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
(i) Except as disclosed in the Company’s declaration Registration Statement and the Prospectus, none of trust the Company or its Subsidiaries is or, with the giving of notice or lapse of time or both, will be as of the Closing Date, in violation or default of (as may be amended, modified i) any of the provisions of the organizational or supplemented from time to time, governing documents of the “Declaration of Trust”) Company or bylawsthe applicable Subsidiary, (ii) any U.S. or non-U.S. law, rule or regulation applicable to the Company or the applicable Subsidiary, (iii) any order, judgment or decree applicable to the Company or the applicable Subsidiary, or by which any property or asset of the Company or the applicable Subsidiary may be bound or (iv) any of the terms and provisions of any loan or credit agreement, indenture, mortgage, deed of trust mortgage note or lease other agreement or instrument to which the Company is a party or by which the Company or any of its properties or assets is or may be bound; except with respect to clauses (ii) and (iv) above, for such violations or defaults that would not reasonably be expected to have a Material Adverse Effect.
(j) The execution, delivery and performance by the Company of this Agreement, the Indenture, the Securities and the DTC Agreement and the consummation of the transactions contemplated hereby and compliance by the Company with its obligations hereunder and thereunder do not and will not (i) conflict with or result in a violation of any of the provisions of the organizational or governing documents of the Company, (iiiii) conflict with or violate any U.S. or non-U.S. law, rule or regulation applicable to the Company, (iii) conflict with or violate any order, judgment or decree applicable to the Company or by which any property or asset of the Company is or may be bound or (iv) any writ, injunction or decree result in a breach of any governmentof the terms or provisions of, governmental instrumentality or courtconstitute a default (with or without due notice and/or lapse of time) under, domestic any loan or foreigncredit agreement, having jurisdiction over indenture, mortgage, note or other agreement or instrument to which the Company, Company is a party or by the Company or any of its properties or assets is or may be bound; except in the cases of with respect to clauses (ii), (iii) and (iv)) above, for such conflicts violations, or defaults thatthat would not reasonably be expected to have a Material Adverse Effect.
(k) No applicable judgments, individually decrees, consents, authorizations, approvals, orders, exemptions, registrations, qualifications or other actions of, or filing with or notice to, any governmental authority, the Commission or any other U.S. or non-U.S. regulatory or governmental authority (collectively, “Approvals”) are required in connection with the execution and delivery by the Company of this Agreement, the Indenture, the Securities and the DTC Agreement and the consummation of the transactions herein contemplated, except for (i) such Approvals which, considering all such Approvals in the aggregate, would not reasonably be expected to result in a material adverse effect on Material Adverse Effect, (ii) those that have been made or obtained, (iii) any post-effective amendment to the ability Registration Statement adding certain documents related to the offering of the Company to perform its obligations hereunder.
(g) Except Securities as have been obtained or waived, no material consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Company of this Agreement or the issuance and sale by the Company of the Shares, except for (i) any necessary qualification or registration under the securities or blue sky laws of the jurisdictions in which the Shares will be offered by the Dealer Manager and the Participating Broker-Dealers, or the establishment of preemption or an exemption from such qualification or registration requirementsexhibits thereto, and (iiiv) any filing and approval filings as may be (w) required pursuant to by the 1933 Act, the Securities Exchange Act of 1934, as amended (collectively with the rules and regulations of the Commission promulgated thereunder, the “Exchange Act”) or the Investment Company Act of 1940, as amended (collectively with the rules and regulations of the Commission promulgated thereunder, the “1940 Act”), (x) required by the Financial Industry Regulatory Authority, Inc. ; or (“FINRA”y) contained in its rulebook (the “FINRA Rules”).
(h) At the time of the issuance of the Shares, the Shares will have been duly authorized and, when issued and sold as contemplated required by the Memorandum and the Declaration of Trust, and upon payment therefor as provided by the Memorandum and this Agreement, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Memorandum.
(i) The Company does not intend to conduct its business so as to be considered an “investment company” (as that term is defined in the Investment Company Act, and the rules and regulations thereunder), and it will exercise reasonable diligence to ensure that it does not become an “investment company” within the meaning of the Investment Company Act.
(j) Any and all printed sales literature or other materials Nasdaq Global Market in connection with the Offering that are prepared by the Company and/or the Dealer Manager, and that have been approved in advance, in writing, by the Company specifically for use with potential investors in connection with the Offering (and such approval has not been subsequently withdrawn pursuant to Section 14 below) (collectively, “Authorized Sales Materials”), when used in conjunction with the Memorandum, did not at the time provided for use, and, as to later provided materials, will not at the time provided for use, include any untrue statement of a material fact, nor did they at the time provided for use, or, as to later provided materials, will they at the time provided for use, omit to state a material fact necessary to make the statements therein, in light listing of the circumstances under which they were made and when read in conjunction with the Memorandum, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in any Authorized Sales Materials made in reliance upon, and in conformity with, information furnished in writing to the Company by the Dealer Manager or any Participating Broker-Dealers expressly for use in any Authorized Sales Materials.
(k) To the Company’s knowledge, none of the Company, the Adviser, or any of their respective affiliates, officers or directors has, within the six (6) calendar months preceding the date of this Agreement, sold or offered for sale any securities that may be “integrated” with the Offering within the meaning of Rule 502(a) of Regulation D promulgated under the Securities Act, other than sales of securities to “accredited investors” that would not prevent the Offering from qualifying for the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities ActSecurities.
(l) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been (i) any material adverse change in the business, prospects, properties or assets, or in the results of operations, condition (financial or otherwise), business or operations of the Company and its Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or (ii) except as otherwise expressly disclosed in the Registration Statement and the Prospectus, (A) any transaction that is material to the Company or its Subsidiaries, taken as a whole, planned or entered into by the Company or any of its Subsidiaries, (B) any obligation, direct or contingent, that is material to the Company and its Subsidiaries, incurred by the Company or its Subsidiaries, taken as a whole, except obligations incurred in the ordinary course of business, (C) any material change in the capital stock or outstanding indebtedness of the Company or its Subsidiaries or (D) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company.
(m) There is no action, suit, proceeding, inquiry or investigation pending or, to the knowledge of the Company, threatened in writing against the Company before or brought by any court or other governmental authority or arbitration board or tribunal, which is required to be disclosed in the Registration Statement and the Prospectus (other than as disclosed therein), or which might, individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(n) All legal or governmental proceedings, agreements, instruments or other documents or arrangements of a character required to be described in the Registration Statement and the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed as required.
(o) Deloitte & Touche LLP, which has certified certain financial statements of the Company incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm with respect to the Company and its Subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Exchange Act.
(p) The financial statements (including the related notes) of the Company incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable requirements under the 1933 Act and the Exchange Act; such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby and fairly present in all material respects the financial position of the entities purported to be covered thereby at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated; and the financial information contained in the Registration Statement and the Prospectus is derived from the accounting records of the Company and its Subsidiaries and fairly presents in all material respects the information purported to be shown thereby. No other financial statements or supporting schedules are required to be included in the Registration Statement and the Prospectus.
(q) The Company maintains an effective system of “disclosure controls and the Adviser are not subject to any procedures” (as defined in Rule 13a-15(e) of the “Bad Actor” disqualifications described Exchange Act) that is designed to ensure that material information required to be disclosed by the Company in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated reports that it files or submits under the Securities Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Exchange Act and will not be disqualified from relying on the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act with regard that such information is communicated to the offer and sale of the Shares by the occurrence or issuance of any conviction, order, judgment, decree, suspension, injunction, expulsion or bar described in Rule 506(d)(1)(i) Company’s management as appropriate to (viii) of Regulation D promulgated under the Securities Act (each, a “Company Disqualifying Event”), except for a Company Disqualifying Event covered by Rule 506(d)(2) or (3) of Regulation D promulgated under the Securities Actallow timely decisions regarding required disclosure. The Company has compliedcarried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(r) The Company maintains systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the extent applicablereliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. There are no material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (x) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(s) The Company and each of its disclosure obligations under Rule 506(eSubsidiaries own or possess, or can acquire on reasonable terms, sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets and other similar rights (collectively, “Intellectual Property Rights”) under the Securities Actreasonably necessary to conduct their businesses as now conducted, and has furnished or if such Intellectual Property Rights are not possessed such absence would not reasonably be expected to the Dealer Manager and any Participating Broker-Dealers result in a copy Material Adverse Effect. The expected expiration of any disclosures provided thereunderof such Intellectual Property Rights would not result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice of infringement or conflict with asserted Intellectual Property Rights of others, which (if subject to any unfavorable decision, ruling or finding or invalidity or unenforceability), singly or in the aggregate, would result in a Material Adverse Effect.
(t) The Company will notify and each of its Subsidiaries possess such valid and current licenses, certificates, authorizations, consents, approvals or permits issued by the Dealer Manager and Participating Broker-Dealers of appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, except where the occurrence failure so to possess would not, singly or issuance of any Company Disqualifying Event of which in the Company becomes aware.aggregate, result in
Appears in 1 contract
