Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, that: a. The Dealer Manager is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New York, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement. c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-laws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws. d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws. e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus. f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act. h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 4 contracts
Samples: Dealer Manager Agreement (Oaktree Real Estate Income Trust, Inc.), Dealer Manager Agreement (Oaktree Real Estate Income Trust, Inc.), Dealer Manager Agreement (Oaktree Real Estate Income Trust, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, that:
a. The Dealer Manager is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New YorkDelaware, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawsbylaws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot PATRIOT Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot PATRIOT Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 3 contracts
Samples: Dealer Manager Agreement (Brookfield Real Estate Income Trust Inc.), Dealer Manager Agreement (Oaktree Real Estate Income Trust, Inc.), Adviser Transition Agreement (Oaktree Real Estate Income Trust, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants to the CompanyCompany as of the date hereof and at all times during the term of this Agreement (provided that, with respect to the Offeringextent representations and warranties are given only as of a specified date or dates, the Dealer Manager only makes such representations and warranties as applicable, thatof such date or dates) as follows:
a. 3.1 The Dealer Manager is a limited liability company duly formedorganized, validly existing and in good standing under the laws of the State of New YorkDelaware, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent3.2 This Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager Manager, and assuming due authorization, execution and delivery of this AgreementAgreement by the Company and the Operating Partnership, will constitute a valid and legally binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability and except that rights to indemnity and contribution hereunder may be limited by applicable law and public policy.
c. 3.3 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (ia) the Dealer Manager’s charter or by-lawsorganizational documents, (iib) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which it may be bound, or to which any of the property or assets of the Dealer Manager or any of its subsidiaries or any of their properties is bound subject, or (iiic) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or its assets, properties or operations, except to in the extent case of clause (b) or (c) for such conflicts or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager.
d. 3.4 The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be is (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA FINRA, and (c) a broker-broker or dealer duly registered as such in those states jurisdictions where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement. Each of Moreover, the Dealer Manager’s employees and representatives has have all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated therebyAgreement. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Moody National REIT I, Inc.), Dealer Manager Agreement (Moody National REIT I, Inc.)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and member of the Financial Industry Regulatory Authority (“FINRA”) in good standing and a broker-dealer registered as such under the Securities Exchange Act of 1934, as amended, and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except to the extent that the enforceability of the indemnity provisions contained in Section 8 hereof may be limited under applicable securities laws and to the extent that the enforceability of this Agreement may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right(e) No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. (f) The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The (g) All training and education meetings held by the Dealer Manager will be in compliance with Rule 5110 (i)(2) of the FINRA rules. Dealer Manager will require each Participating Broker to represent that all training and education meetings held by the Participating Broker will be in compliance with Rule 5110(i)(2) of the FINRA rules.
(h) Dealer Manager will obtain FINRA approval of any sales incentive program developed by the Dealer Manager prior to its implementation. Dealer Manager will require each Participating Broker to represent that all sales incentive and bonus programs designed by the Participating Broker for its registered representatives will comply with the FINRA rules. For purposes of this Agreement, references to “FINRA rules,” “rules of FINRA” or similar variations, shall include, unless otherwise expressly stated or context otherwise requires, NASD and FINRA rules currently in effect and any successor or subsequent rules adopted by FINRA as part of its consolidated rulebook or otherwise.
(i) Dealer Manager has established and implemented will maintain, and will require Participating Brokers to establish and maintain, a customer identification program which requires Dealer Manager, or the Participating Broker, as applicable, to (i) verify the identify of any person seeking to purchase the Shares through Dealer Manager, or the Participating Broker, as applicable, to the extent reasonable and practicable, (ii) maintain records of the information used to verify the person’s identity and (iii) determine whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to brokers or dealers by any government agency, in all accordance with the requirements of 31 C.F.R. Section 103.122.
(j) Dealer Manager has established and will maintain an anti-money laundering compliance program (the “AML Program”) in compliance accordance with applicable lawlaws and regulations, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Act of 2001, and in accordance with NASD Rule 3011 (or successor FINRA rule) and the related interpretive guidance described in NASD’s IM-3011-1 and IM-3011-2 (or successor FINRA interpretive guidance), and Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control will require each of the U.S. Department of the Treasury Participating Brokers to establish and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsmaintain such a program.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Cornerstone Core Properties REIT, Inc.), Dealer Manager Agreement (Cornerstone Core Properties REIT, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as follows as of the date hereof; provided, that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only make such representations and warranties as applicable, thatof such date or dates:
a. (a) The Dealer Manager is a limited liability company Delaware corporation duly formed, and validly formed and existing and in good standing under the laws General Corporation Law of the State of New York, Delaware with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (ib) the Dealer Manager’s charter or by-laws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA FINRA, and (c) a broker-broker or dealer duly registered as such in those states or jurisdictions where the Dealer Manager is required to be registered in order to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement. Each employee and representative of the Dealer Manager’s employees and representatives has Manager have all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated therebyAgreement. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement.
f. The Dealer Manager represents and warrants to (c) No consent, approval, authorization or order of any court or other governmental agency, authority or body has been or is required for the Company and each person that signs performance of this Agreement or for the Registration Statement that consummation of the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company transactions contemplated herein by the Dealer Manager except as have been obtained under the Securities Act or the Exchange Act, from FINRA or as may be required under the applicable “blue sky” or other state securities laws.
(d) The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not and will not result in writing expressly for use in a breach of any of the Registration Statement, any preliminary prospectus, the Prospectusterms and provisions of, or any amendment constitute a default under (i) the Dealer Manager’s charter, bylaws or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970other organizational documents, as amended by applicable, (ii) any indenture, mortgage, deed of trust, voting trust agreement, note, lease or other agreement or instrument to which the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently a party or by which the Dealer Manager is bound, or (iii) any rule or regulation or order of any court or other governmental agency or body with jurisdiction over the Dealer Manager except for such conflicts, breaches or defaults that do not result in compliance with all AML Rulesand could not reasonably be expected to result in, includingindividually or in the aggregate, but not limited toa Dealer Manager MAE (as defined below). As used in this Agreement, “Dealer Manager MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the Customer Identification Program requirements under Title III aggregate, that is, or could reasonably be expected to be, materially adverse to (A) the condition, financial or otherwise, earnings, business, affairs or prospects of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed or (B) the ability of the Dealer Manager to ensure compliance by perform its obligations under this Agreement or the validity or enforceability of this Agreement against the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Invesco Real Estate Income Trust Inc.), DST Dealer Manager Agreement (Starwood Real Estate Income Trust, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New YorkCalifornia, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. (b) No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. (c) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawslimited liability company operating agreement, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound bound, or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. (d) The Dealer Manager 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 and contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. (e) The Dealer Manager is, and during the term of this Agreement will be (ai) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (bii) a member in good standing of FINRA FINRA, and (ciii) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. (f) The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. (g) The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. (h) The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices ActAct of 1977, as amended. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Belpointe PREP, LLC), Dealer Manager Agreement (Belpointe PREP, LLC)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as of the date hereof and at all times during the Offering Period (provided that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, that:of such date or dates):
a. 3.1 The Dealer Manager is a limited liability company corporation duly formed, organized and validly existing and in good standing under the laws of the State of New YorkDelaware, and is in good standing with the Secretary of State of the State of Delaware, with all requisite full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and to carry out its obligations hereunderperform the transactions contemplated hereby and thereby.
b. No consent3.2 This Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager and, assuming due authorization, execution and delivery by the Company and the Adviser, is a legal, valid and binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 12 of this AgreementAgreement may be limited under applicable securities laws.
c. 3.3 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with with, violate the terms of or constitute a default under (ia) the Dealer Manager’s charter or by-lawsits organizational documents, (iib) any indenture, mortgage, deed of trust trust, lease or lease other material agreement or instrument to which the Dealer Manager or any of its subsidiaries is a party or by which it may be bound, (c) any law, order, rule or regulation applicable to the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iiid) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or its assets, except to properties or operations, except, in the extent case of clauses (b), (c) or (d) for such conflicts, violations or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), results of operations or cash flow of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager.
d. 3.4 The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be is (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (cb) registered as a securities broker-dealer duly registered as such in those states where jurisdictions wherein members of, or persons associated with, the Dealer Manager is required to be registered in order to carry out will offer or sell the Offering as contemplated by this Agreement and the ProspectusOffered Shares. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of Members of, or persons associated with, the Dealer Manager who offer or sell the Offered Shares are duly registered or licensed by, and in good standing with, FINRA and those jurisdictions wherein they will offer or sell the Offered Shares. Except as otherwise disclosed to carry out the Offering as contemplated by this Agreement and Company in writing, neither the Prospectus.
f. Dealer Manager nor any of its associated persons have been subject to a fine, a consent decree or suspension of their licenses or registrations within the last three (3) years for violation of federal or State securities rules, laws or regulations. The Dealer Manager represents and warrants to will promptly advise the Company and each person that signs the Registration Statement that the of any pending, threatened or current civil or administrative proceedings involving alleged violations of such rules, laws or regulations.
3.5 The information under the caption “Plan of Distribution” in the Prospectus insofar as it relates to the Dealer Manager, and all other information furnished to the Company by the Dealer Manager in writing expressly specifically for use in the Registration Statement, any preliminary prospectus, Statement or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Dealer Manager Agreement (CION Investment Corp), Dealer Manager Agreement (CION Investment Corp)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. 2.1. The Dealer Manager is a limited liability company duly formedmember of the National Association of Securities Dealers, validly existing and Inc. (the “NASD”) in good standing and a broker-dealer registered as such under the Exchange Act and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
2.2. The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. 2.3. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 6 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right2.4. No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. 2.5. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Wells Real Estate Investment Trust Ii Inc), Dealer Manager Agreement (Wells Real Estate Investment Trust Ii Inc)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as of the date hereof and at all times during the Offering Period (provided that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, that:of such date or dates):
a. 3.1 The Dealer Manager is a limited liability company duly formed, organized and validly existing and in good standing under the laws of the State of New YorkDelaware, and is in good standing with the Secretary of State of Delaware, with all requisite full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and to carry out its obligations hereunderperform the transactions contemplated hereby and thereby.
b. No consent3.2 This Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager and, assuming due authorization, execution and delivery by the Company and the Adviser, is a legal, valid and binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 12 of this AgreementAgreement may be limited under applicable securities laws.
c. 3.3 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with with, violate the terms of or constitute a default under (ia) the Dealer Manager’s charter or by-lawsits organizational documents, (iib) any indenture, mortgage, deed of trust trust, lease or lease other material agreement or instrument to which the Dealer Manager or any of its subsidiaries is a party or by which it may be bound, (c) any law, order, rule or regulation applicable to the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iiid) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or its assets, except to properties or operations, except, in the extent case of clauses (b), (c) or (d) for such conflicts, violations or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), results of operations or cash flow of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager.
d. 3.4 The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be is (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (cb) registered as a securities broker-dealer duly registered as such in those states where jurisdictions wherein members of, or persons associated with, the Dealer Manager is required to be registered in order to carry out will distribute the Offering as contemplated by this Agreement and the ProspectusOffered Shares. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of Members of, or persons associated with, the Dealer Manager who distribute the Offered Shares are duly registered or licensed by, and in good standing with, FINRA and those jurisdictions wherein they will distribute the Offered Shares. Except as otherwise disclosed to carry out the Offering as contemplated by this Agreement and Company in writing, neither the Prospectus.
f. Dealer Manager nor any of its associated persons have been subject to a fine, a consent decree or suspension of their licenses or registrations within the last three (3) years for violation of federal or State securities rules, laws or regulations. The Dealer Manager represents and warrants to will promptly advise the Company and each person that signs the Registration Statement that the of any pending, threatened or current civil or administrative proceedings involving alleged violations of such rules, laws or regulations.
3.5 The information under the caption “Plan of Distribution” in the Prospectus insofar as it relates to the Dealer Manager, and all other information furnished to the Company by the Dealer Manager in writing expressly specifically for use in the Registration Statement, any preliminary prospectus, Statement or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 2 contracts
Samples: Follow on Dealer Manager Agreement (CION Investment Corp), Follow on Dealer Manager Agreement (CION Investment Corp)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as follows as of the date hereof; provided, that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, thatof such date or dates:
a. (a) The Dealer Manager is a limited liability company duly formed, and validly formed and existing and in good standing under the laws of the State of New YorkDelaware, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (ib) the Dealer Manager’s charter or by-laws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA FINRA, and (c) a broker-broker or dealer duly registered as such in those states or jurisdictions where the Dealer Manager is required to be registered in order to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement. Each employee and representative of the Dealer Manager’s employees Manager have, and representatives has at all times throughout the term of this Agreement, shall maintain, all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated therebyAgreement. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement.
f. The Dealer Manager represents and warrants to (c) No consent, approval, authorization or order of any court or other governmental agency, authority or body has been or is required for the Company and each person that signs performance of this Agreement or for the Registration Statement that consummation of the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company transactions contemplated herein by the Dealer Manager except as have been obtained under the Securities Act or the Exchange Act, from FINRA or as may be required under the applicable “blue sky” or other state securities laws.
(d) The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not and will not result in writing expressly for use in a breach of any of the Registration Statement, any preliminary prospectus, the Prospectusterms and provisions of, or constitute a default under (i) the Dealer Manager’s organizational documents, (ii) any amendment indenture, mortgage, deed of trust, voting trust agreement, note, lease or supplement thereto does not contain any untrue statement of a material fact other agreement or omit instrument to state any material necessary to make which the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, a party or by which the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by is bound, or (iii) any rule or regulation or order of any court or other governmental agency or body with jurisdiction over the Dealer Manager, its subsidiaries except for such conflicts, breaches or defaults that do not result in and their respective officerscould not reasonably be expected to result in, directorsindividually or in the aggregate, employees and agents with a Dealer Manager MAE (ias defined below). As used in this Agreement, “Dealer Manager MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the aggregate, that is, or could reasonably be expected to be, materially adverse to (A) all applicable economic sanctions the condition, financial or trade embargoes (“Sanctions”)otherwise, including but not limited to those administered by the Office of Foreign Assets Control earnings, business, affairs or prospects of the U.S. Department Dealer Manager or (B) the ability of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to perform its obligations under this Agreement or the target validity or enforceability of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsthis Agreement against the Dealer Manager.
Appears in 1 contract
Samples: DST Dealer Manager Agreement (Brookfield Real Estate Income Trust Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. The Dealer Manager is a limited liability company duly formedorganized, validly existing and in good standing under the laws of the State of New YorkColorado, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentThis Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager Manager, and assuming due authorization, execution and delivery of this AgreementAgreement by the Company, will constitute a valid and legally binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability and except that rights to indemnity and contribution hereunder may be limited by applicable law and public policy.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawsits organizational documents, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Dealer Manager or any of its subsidiaries or any of their properties is bound subject, or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or any subsidiary or any of their assets, properties or operations, except to in the extent case of clause (ii) or (iii) for such conflicts or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager and its subsidiaries taken as a whole.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a broker-dealer duly registered as such in the State of Colorado, a member in good standing of FINRA the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (c) a broker-broker or dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as Private Placements contemplated by this Agreement the Memorandum and the ProspectusProperty Supplements. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents is in compliance with all applicable rules and warrants regulations to which it is subject, including without limitation, those under the Company Exchange Act and each person that signs the Registration Statement that the Rules promulgated by FINRA.
e. The information under the caption “Plan of DistributionPrivate Placement” in the Prospectus Memorandum and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the ProspectusMemorandum, or any amendment or supplement thereto thereto, does not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. f. The Dealer Manager acknowledges that the Private Placements are inappropriate for and shall not be used for any form of prospecting, and that the Commission staff has established indicated that it believes furnishing copies of a private placement memorandum (or a description of the terms of a security to be privately placed) to lawyers, accountants or other professionals and implemented asking such lawyers, accountants or other professionals to call an anti-money laundering compliance program offering to the attention of their clients who might be interested or to otherwise facilitate the offering (the “AML ProgramFinancial Intermediaries”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”)may constitute a general solicitation. The Dealer Manager further acknowledges that the use of Financial Intermediaries in this manner is currently in compliance inconsistent with all AML Rulesa private placement under Regulation D, including, but not limited to, and the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains covenants that it shall not initiate contact with a Financial Intermediary, other than a registered representative of a registered broker dealer or registered investment adviser, for the purpose of soliciting, directly or indirectly, an offer to participate in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsa Private Placement.
Appears in 1 contract
Samples: Dealer Manager Agreement (Black Creek Diversified Property Fund Inc.)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formedmember of the National Association of Securities Dealers, validly existing and Inc. (the "NASD") in good standing and a broker-dealer registered as such under the Exchange Act and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 8 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right(e) No consent, power and approval, authorization or other order of any governmental 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out connection with the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company execution, delivery or performance by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthis Agreement.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cornerstone Realty Fund Inc)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and member of the NASD in good standing and a broker-dealer registered as such under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 8 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right, power laws 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 5 of this Agreement may be limited under by bankruptcy, insolvency, reorganization, moratorium or other similar laws that affect creditors’ rights generally or by equitable principles relating to the availability of remedies.
(e) No consent, approval, authorization or other order of any governmental authority is required in connection with the execution, delivery or performance by the Dealer Manager of this Agreement except such as may be required by the NASD, the Securities Act or applicable state securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (af) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement (or is named as a person about to become a director) that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished or to be furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The (g) All training and education meetings held by the Dealer Manager will be in compliance with Rule 2710(i)(2) of the NASD Conduct Rules. Dealer Manager will require each Participating Broker to represent that all training and education meetings held by the Participating Broker will be in compliance with Rule 2710(i)(2) of the NASD Conduct Rules.
(h) Dealer Manager will obtain NASD approval of any sales incentive program developed by the Dealer Manager prior to its implementation. Dealer Manager will require each Participating Broker to represent that all sales incentive and bonus programs designed by the Participating Broker for its registered representatives will comply with the NASD Conduct Rules.
(i) Dealer Manager has established and implemented will maintain, or will require Participating Brokers to establish and maintain, a customer identification program which requires Dealer Manager or the Participating Broker, as applicable, to (i) verify the identify of any person seeking to purchase the Shares through Dealer Manager to the extent reasonable and practicable, (ii) maintain records of the information used to verify the person’s identity and (iii) determine whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to brokers or dealers by any government agency, in all accordance with the requirements of 31 C.F.R. Section 103.122.
(j) Dealer Manager has established and will maintain an anti-money laundering compliance program (the “AML Program”) in compliance accordance with applicable lawlaws and regulations, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III and applicable rules of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”)NASD, including but not limited the guidance provided by Special NASD Notice to those administered by the Office of Foreign Assets Control Members 02-21, and shall comply with Executive Order 13224 – Executive Order on Terrorist Financing Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, or will require each of the U.S. Department of the Treasury Participating Brokers to establish and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsmaintain such a program.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cornerstone Growth & Income REIT, Inc.)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and member of the Financial Industry Regulatory Authority (“FINRA”) in good standing and a broker-dealer registered as such under the Securities Exchange Act of 1934, as amended, and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except to the extent that the enforceability of the indemnity provisions contained in Section 8 hereof may be limited under applicable securities laws and to the extent that the enforceability of this Agreement may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right(e) No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. (f) The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The (g) All training and education meetings held by the Dealer Manager will be in compliance with Rule 5110 (i)(2) of the FINRA rules. Dealer Manager will require each Participating Broker to represent that all training and education meetings held by the Participating Broker will be in compliance with Rule 5110(i)(2) of the FINRA rules.
(h) Dealer Manager will obtain FINRA approval of any sales incentive program developed by the Dealer Manager prior to its implementation. Dealer Manager will require each Participating Broker to represent that all sales incentive and bonus programs designed by the Participating Broker for its registered representatives will comply with the FINRA rules. For purposes of this Agreement, references to “FINRA rules,” “rules of FINRA” or similar variations, shall include, unless otherwise expressly stated or context otherwise requires, NASD and FINRA rules currently in effect and any successor or subsequent rules adopted by FINRA as part of its consolidated rulebook or otherwise.
(i) Dealer Manager has established and implemented will maintain, and will require Participating Brokers to establish and maintain, a customer identification program which requires Dealer Manager, or the Participating Broker, as applicable, to (i) verify the identify of any person seeking to purchase the Shares through Dealer Manager, or the Participating Broker, as applicable, to the extent reasonable and practicable, (ii) maintain records of the information used to verify the person's identity and (iii) determine whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to brokers or dealers by any government agency, in all accordance with the requirements of 31 C.F.R. Section 103.122.
(j) Dealer Manager has established and will maintain an anti-money laundering compliance program (the “AML Program”) in compliance accordance with applicable lawlaws and regulations, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Act of 2001, and in accordance with NASD Rule 3011 (or successor FINRA rule) and the related interpretive guidance described in NASD’s IM-3011-1 and IM-3011-2 (or successor FINRA interpretive guidance), and Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control will require each of the U.S. Department of the Treasury Participating Brokers to establish and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsmaintain such a program.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cornerstone Core Properties REIT, Inc.)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and member of the Financial Industry Regulatory Authority (“FINRA”) in good standing and a broker-dealer registered as such under the Securities Exchange Act of 1934, as amended, and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except to the extent that the enforceability of the indemnity provisions contained in Section 8 hereof may be limited under applicable securities laws and to the extent that the enforceability of this Agreement may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right(e) No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. (f) The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as follows as of the date hereof; provided, that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, thatof such date or dates:
a. (a) The Dealer Manager is a Delaware limited liability company duly formed, and validly formed and existing and in good standing under the laws of the State of New YorkDelaware, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (ib) the Dealer Manager’s charter or by-laws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA FINRA, and (c) a broker-broker or dealer duly registered as such in those states or jurisdictions where the Dealer Manager is required to be registered in order to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement. Each employee and representative of the Dealer Manager’s employees and representatives has Manager have all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated therebyAgreement. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering Offerings as contemplated by this Agreement and the ProspectusAgreement.
f. The Dealer Manager represents and warrants to (c) No consent, approval, authorization or order of any court or other governmental agency, authority or body has been or is required for the Company and each person that signs performance of this Agreement or for the Registration Statement that consummation of the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company transactions contemplated herein by the Dealer Manager except as have been obtained under the Securities Act or the Exchange Act, from FINRA or as may be required under the applicable “blue sky” or other state securities laws.
(d) The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not and will not result in writing expressly for use in a breach of any of the Registration Statement, any preliminary prospectus, the Prospectusterms and provisions of, or constitute a default under (i) the Dealer Manager’s organizational documents, (ii) any amendment indenture, mortgage, deed of trust, voting trust agreement, note, lease or supplement thereto does not contain any untrue statement of a material fact other agreement or omit instrument to state any material necessary to make which the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently a party or by which the Dealer Manager is bound, or (iii) any rule or regulation or order of any court or other governmental agency or body with jurisdiction over the Dealer Manager except for such conflicts, breaches or defaults that do not result in compliance with all AML Rulesand could not reasonably be expected to result in, includingindividually or in the aggregate, but not limited toa Dealer Manager MAE (as defined below). As used in this Agreement, “Dealer Manager MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the Customer Identification Program requirements under Title III aggregate, that is, or could reasonably be expected to be, materially adverse to (A) the condition, financial or otherwise, earnings, business, affairs or prospects of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed or (B) the ability of the Dealer Manager to ensure compliance by perform its obligations under this Agreement or the validity or enforceability of this Agreement against the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: DST Dealer Manager Agreement (Starwood Real Estate Income Trust, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as of the date hereof and at all times during the Offering Period (provided that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, that:of such date or dates):
a. 2.1 The Dealer Manager is a limited liability company corporation duly formed, organized and validly existing and in good standing under the laws of the State of New YorkDelaware, and is in good standing with the Secretary of State of the State of Delaware, with all requisite full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and to carry out its obligations hereunderperform the transactions contemplated hereby and thereby.
b. No consent2.2 This Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager and, assuming due authorization, execution and delivery by the Company, is a legal, valid and binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 10 of this AgreementAgreement may be limited under applicable securities laws.
c. 2.3 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with with, violate the terms of or constitute a default under (ia) the Dealer Manager’s charter or by-lawsits organizational documents, (iib) any indenture, mortgage, deed of trust trust, lease or lease other material agreement or instrument to which the Dealer Manager or any of its subsidiaries is a party or by which it may be bound, (c) any law, order, rule or regulation applicable to the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iiid) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or its assets, except to properties or operations, except, in the extent case of clauses (b), (c) or (d) for such conflicts, violations or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), results of operations or cash flow of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager.
d. 2.4 The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be is (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (cb) registered as a securities broker-dealer duly registered as such in those states where jurisdictions wherein members of, or persons associated with, the Dealer Manager is required to be registered in order to carry out will offer or sell the Offering as contemplated by this Agreement and the ProspectusOffered Shares. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of Members of, or persons associated with, the Dealer Manager who offer or sell the Offered Shares are duly registered or licensed by, and in good standing with, FINRA and those jurisdictions wherein they will offer or sell the Offered Shares. Except as otherwise disclosed to carry out the Offering as contemplated by this Agreement and Company in writing, neither the Prospectus.
f. Dealer Manager nor any of its associated persons have been subject to a fine, a consent decree or suspension of their licenses or registrations within the last three (3) years for violation of federal or State securities rules, laws or regulations. The Dealer Manager represents and warrants to will promptly advise the Company and each person that signs the Registration Statement that the of any pending, threatened or current civil or administrative proceedings involving alleged violations of such rules, laws or regulations.
2.5 The information under the caption “Plan of Distribution” in the Prospectus insofar as it relates to the Dealer Manager, and all other information furnished to the Company by the Dealer Manager in writing expressly specifically for use in the Registration Statement, any preliminary prospectus, Statement or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. The Dealer Manager is a limited liability company duly formedorganized, validly existing and in good standing under the laws of the State of New YorkColorado, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentThis Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager Manager, and assuming due authorization, execution and delivery of this AgreementAgreement by the Company, will constitute a valid and legally binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability and except that rights to indemnity and contribution hereunder may be limited by applicable law and public policy.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawsits organizational documents, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Dealer Manager or any of its subsidiaries or any of their properties is bound subject, or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or any subsidiary or any of their assets, properties or operations, except to in the extent case of clause (ii) or (iii) for such conflicts or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager and its subsidiaries taken as a whole.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a broker-dealer duly registered as such in the State of Colorado, a member in good standing of FINRA the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (c) a broker-broker or dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as Private Placements contemplated by this Agreement the Memorandum, Property Supplement(s) and the Prospectusany applicable Modified Fee Supplement(s). Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents is in compliance with all applicable rules and warrants regulations to which it is subject, including without limitation, those under the Company Exchange Act and each person that signs the Registration Statement that the Rules promulgated by FINRA.
e. The information under the caption “Plan of DistributionPrivate Placement” in the Prospectus Memorandum and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the ProspectusMemorandum, or any amendment or supplement thereto thereto, does not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. f. The Dealer Manager acknowledges that the Private Placements are inappropriate for and shall not be used for any form of prospecting, and that the Commission staff has established indicated that it believes furnishing copies of a private placement memorandum (or a description of the terms of a security to be privately placed) to lawyers, accountants or other professionals and implemented asking such lawyers, accountants or other professionals to call an anti-money laundering compliance program offering to the attention of their clients who might be interested or to otherwise facilitate the offering (the “AML ProgramFinancial Intermediaries”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”)may constitute a general solicitation. The Dealer Manager further acknowledges that the use of Financial Intermediaries in this manner is currently in compliance inconsistent with all AML Rulesa private placement under Regulation D, including, but not limited to, and the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains covenants that it shall not initiate contact with a Financial Intermediary, other than a registered representative of a registered broker dealer or registered investment adviser, for the purpose of soliciting, directly or indirectly, an offer to participate in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsa Private Placement.
Appears in 1 contract
Samples: Dealer Manager Agreement (Black Creek Diversified Property Fund Inc.)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. 2.1. The Dealer Manager is a limited liability company duly formedmember of the National Association of Securities Dealers, validly existing and Inc. (the “NASD”) in good standing and a broker-dealer registered as such under the Exchange Act and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
2.2. The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. 2.3. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 6 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right2.4. No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. 2.5. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Wells Real Estate Investment Trust Ii Inc)
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. 2.1. The Dealer Manager is a limited liability company duly formedmember of the Financial Industry Regulatory Authority, validly existing and Inc. (“FINRA”) in good standing and a broker-dealer registered as such under the Exchange Act and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
2.2. The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. 2.3. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 6 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right2.4. No consent, power and approval, authorization or other order of any governmental authority to enter into this Agreement and to perform is required in connection with the transactions contemplated herebyexecution, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where delivery or performance by the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by of this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusAgreement.
f. 2.5. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Wells Real Estate Investment Trust Ii Inc)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants to the Company, with respect as of the date of the Original Agreement and at all times during the Offering Period (provided that, to the Offeringextent such representations and warranties of the Dealer Manager are given only as of a specified date or dates, the Dealer Manager only makes such representations and warranties as of such specified date or dates), as applicable, thatfollows:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New York, with with, as of the date of this Agreement, all requisite power and authority to enter into this Agreement and to carry out perform the transactions contemplated hereby.
(b) As of the date of this Agreement, the Dealer Manager 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.
(c) There are no actions, suits or proceedings pending or, to the knowledge of the Dealer Manager, threatened against the Dealer Manager, 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 Dealer Manager to perform its obligations hereunder.
b. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Dealer Manager of this Agreement.
c. (d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawsbylaws, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound bound, or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, 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 extent that the enforceability ability of the indemnity and/or contribution provisions contained Dealer Manager to perform its obligations hereunder.
(e) No consent, approval, authorization or other order of any governmental authority is required in Section 5 connection with the execution or delivery by the Dealer Manager of this Agreement may be limited under applicable securities lawsAgreement.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. (f) The Dealer Manager is, and during the term of this Agreement will be (ai) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (bii) a member in good standing of FINRA and (ciii) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the ProspectusMemorandum. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the ProspectusMemorandum.
f. (g) The Dealer Manager represents and warrants to information regarding the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” Offering in the Prospectus Memorandum and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the ProspectusMemorandum, or any amendment or supplement thereto thereto, does not contain any untrue statement of a material fact or omit to state any a material fact necessary to make the statements thereinmade, in light of the circumstances under which they were made, not misleading.
g. (h) The Dealer Manager has established and implemented an anti-money laundering compliance program programs (collectively, the “AML Program”) in compliance accordance with applicable lawU.S. anti-money laundering laws and regulations, including including, but not limited to, applicable FINRA Conduct Rules, SEC rules and regulations, the Exchange Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the Bank Secrecy Act (USA PATRIOT Act) of 19702001, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot PATRIOT Act”) ), and Section 352 of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (collectively, the “AML RulesLaws”), and that such AML Program is reasonably expected to detect and cause the reporting of suspicious transactions in connection with the offer and sale of the Shares. In addition, the Dealer Manager has established and implemented a program for compliance with U.S. sanctions laws and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or any other U.S. governmental entity (such sanctions, regulations and laws, together with any supplements or amendments thereto, the “U.S. Sanctions Laws”) (the “Sanctions Program”) and will continue to maintain the Sanctions Program during the term of this Agreement. Upon request by the Company at any time, Dealer Manager hereby agrees to furnish (i) a written copy of its AML Program and Sanctions Program to the Company for review and (ii) a copy of the findings of, and any remedial actions taken in connection with the Adviser’s most recent independent testing of its AML Program and/or its Sanctions Program.
(i) The Dealer Manager is currently in compliance with all AML RulesLaws and U.S. Sanctions Laws, including, but not limited to, the Customer Identification Program requirements under Title III Section 326 of the USA Patriot ActPATRIOT Act (the “CIP Requirements”), and the Dealer Manager hereby agrees, upon request of the Company, to (A) provide an annual certification to the Company that, for the duration and as of the date of such certification, (i) its AML Program and Sanctions Program were an are consistent with the AML Laws and U.S. Sanctions Laws, (ii) it has implemented and continues to implement its AML Program and Sanctions Program and (iii) it was and is in compliance with all AML Laws and U.S. Sanctions Laws and all related requirements, including, but not limited to, the CIP Requirements; and (B) perform and carry out, on behalf of the Company, the CIP Requirements and any applicable customer identification requirements under Commission and U.S. Department of the Treasury regulations, rules, or guidance. The Dealer Manager represents, warrants, and covenants that it will immediately notify the Company in writing of any known or suspected violations of the AML Laws, U.S. Sanctions Laws, the AML Program, or the Sanctions Program (i) made or caused in relation to any Offering made pursuant to this Agreement or (ii) that could be expected to cause the Company to violate AML Laws or U.S. Sanctions Laws. The Company may, in its reasonable discretion, deem such an event a Dealer Manager Disqualifying Event (as defined below) pursuant to Section 2 of this Agreement.
h. (j) The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including including, but not limited to to, those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury OFAC and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including including, but not limited to to, the Foreign Corrupt Practices ActAct of 1977, as amended (the “FCPA”). The Dealer Manager is not subject to to, or the target of of, any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
(k) None of the Dealer Manager or, to the knowledge of the Dealer Manager, any director, officer, employee or affiliate of the Dealer Manager is aware of or has taken any action, directly or indirectly, that would result in a violation by such person of the FCPA.
(l) The Dealer Manager represents, warrants and agrees, and shall cause Participating Broker-Dealers to represent, warrant and agree, that (i) it is 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 (ii) no 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 has occurred or been issued where the subject of such action is the Dealer Manager, the Dealer Manager’s managing member or, to its reasonable knowledge, any (A) director, (B) executive officer, or (C) any other officer participating in the Offering of the Dealer Manager or the Dealer Manager’s managing member that would make the offer and sale of the Shares ineligible for the exemption from registration under the Securities Act provided by Rule 506 of Regulation D promulgated under the Securities Act (each, a “Dealer Manager Disqualifying Event”). For purposes of this Agreement, the terms “executive officer” and “officer” have the meanings ascribed to such terms in Rules 501 and 405 promulgated under the Securities Act, respectively. The Dealer Manager will notify the Company promptly of the occurrence or issuance of any Dealer Manager Disqualifying Event of which the Dealer Manager becomes aware before the expiration or termination of this Agreement. Set forth on Exhibit A hereto is a description of each circumstance that would have been a Dealer Manager Disqualifying Event but for the fact that it occurred before September 23, 2013 (each, a “Dealer Manager Prior Disqualifying Event”).
(m) In accordance with Rule 506(e) of Regulation D promulgated under the Securities Act, the Dealer Manager shall, or shall cause each Participating Broker-Dealer to, furnish to each purchaser of Shares in the Offering, at a reasonable time before sale, a description in writing of all Dealer Manager Prior Disqualifying Events, which may be included in the Memorandum or any Authorized Sales Materials or subscription documents furnished to such purchaser. The Dealer Manager shall be entitled to approve any description of Dealer Manager Prior Disqualifying Events in advance of use by the Company (such approval not to be unreasonably withheld).
(n) The Dealer Manager has not made and, as of the time of any Offering, shall not have made, any contribution to any official of a government entity (as such terms are defined in Rule 206(4)-5 promulgated under the Investment Advisers Act of 1940, as amended) that the Dealer Manager intends to solicit in connection with its engagement hereunder.
Appears in 1 contract
Representations and Warranties of the Dealer Manager. The As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. (a) The Dealer Manager is a limited liability company duly formed, validly existing and member of the NASD in good standing and a broker-dealer registered as such under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and under the securities laws of the State of New Yorkstates in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.
(b) The Dealer Manager has full legal right, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentperform the transactions contemplated hereby, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by and the Dealer Manager of has duly authorized, executed and delivered this Agreement.
c. (c) This Agreement is a valid, legal, and binding agreement of the Dealer Manager enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws affecting the rights of creditors generally.
(d) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default or violation under (i) the Dealer Manager’s charter or any charter, by-lawslaw, (ii) any contract, indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or and contribution provisions contained in Section 5 8 of this Agreement may be limited under applicable securities laws.
d. The Dealer Manager has full legal right, power laws 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 5 of this Agreement may be limited under by bankruptcy, insolvency, reorganization, moratorium or other similar laws that affect creditors’ rights generally or by equitable principles relating to the availability of remedies.
(e) No consent, approval, authorization or other order of any governmental authority is required in connection with the execution, delivery or performance by the Dealer Manager of this Agreement except such as may be required by the NASD, the Securities Act or applicable state securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (af) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (c) a broker-dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement (or is named as a person about to become a director) that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished or to be furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectusPreliminary Prospectus, or the Prospectus, or any amendment or supplement thereto does not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
g. The (g) All training and education meetings held by the Dealer Manager will be in compliance with Rule 2710(i)(2) of the NASD Conduct Rules. Dealer Manager will require each Participating Broker to represent that all training and education meetings held by the Participating Broker will be in compliance with Rule 2710(i)(2) of the NASD Conduct Rules.
(h) Dealer Manager will obtain NASD approval of any sales incentive program developed by the Dealer Manager prior to its implementation. Dealer Manager will require each Participating Broker to represent that all sales incentive and bonus programs designed by the Participating Broker for its registered representatives will comply with the NASD Conduct Rules.
(i) Dealer Manager has established and implemented will maintain, or will require Participating Brokers to establish and maintain, a customer identification program which requires Dealer Manager or the Participating Broker, as applicable, to (i) verify the identify of any person seeking to purchase the Shares through Dealer Manager to the extent reasonable and practicable, (ii) maintain records of the information used to verify the person’s identity and (iii) determine whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to brokers or dealers by any government agency, in all accordance with the requirements of 31 C.F.R. Section 103.122.
(j) Dealer Manager has established and will maintain an anti-money laundering compliance program (the “AML Program”) in compliance accordance with applicable lawlaws and regulations, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III and applicable rules of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”)NASD, including but not limited the guidance provided by Special NASD Notice to those administered by the Office of Foreign Assets Control Members 02-21, and shall comply with Executive Order 13224 – Executive Order on Terrorist Financing Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, or will require each of the U.S. Department of the Treasury Participating Brokers to establish and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Lawsmaintain such a program.
Appears in 1 contract
Samples: Dealer Manager Agreement (Cornerstone Growth & Income REIT, Inc.)
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as of the date hereof and at all times during the Offering Period (provided that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only makes such representations and warranties as applicable, that:of such date or dates):
a. 2.1 The Dealer Manager is a limited liability company duly formed, organized and validly existing and in good standing under the laws of the State of New YorkDelaware, and is in good standing with the Secretary of State of the State of Delaware, with all requisite full power and authority (corporate and other) to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and to carry out its obligations hereunderperform the transactions contemplated hereby and thereby.
b. No consent2.2 This Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager and, assuming due authorization, execution and delivery by the Company, is a legal, valid and binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnity provisions contained in Section 10 of this AgreementAgreement may be limited under applicable securities laws.
c. 2.3 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with with, violate the terms of or constitute a default under (ia) the Dealer Manager’s charter or by-lawsits organizational documents, (iib) any indenture, mortgage, deed of trust trust, lease or lease other material agreement or instrument to which the Dealer Manager or any of its subsidiaries is a party or by which it may be bound, (c) any law, order, rule or regulation applicable to the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iiid) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or its assets, except to properties or operations, except, in the extent case of clauses (b), (c) or (d) for such conflicts, violations or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), results of operations or cash flow of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager.
d. 2.4 The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be is (a) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a member in good standing of FINRA and (cb) registered as a securities broker-dealer duly registered as such in those states where jurisdictions wherein members of, or persons associated with, the Dealer Manager is required to be registered in order to carry out will offer or sell the Offering as contemplated by this Agreement and the ProspectusOffered Shares. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of Members of, or persons associated with, the Dealer Manager who offer or sell the Offered Shares are duly registered or licensed by, and in good standing with, FINRA and those jurisdictions wherein they will offer or sell the Offered Shares. Except as otherwise disclosed to carry out the Offering as contemplated by this Agreement and Company in writing, neither the Prospectus.
f. Dealer Manager nor any of its associated persons have been subject to a fine, a consent decree or suspension of their licenses or registrations within the last three (3) years for violation of federal or State securities rules, laws or regulations. The Dealer Manager represents and warrants to will promptly advise the Company and each person that signs the Registration Statement that the of any pending, threatened or current civil or administrative proceedings involving alleged violations of such rules, laws or regulations.
2.5 The information under the caption “Plan of Distribution” in the Prospectus insofar as it relates to the Dealer Manager, and all other information furnished to the Company by the Dealer Manager in writing expressly specifically for use in the Registration Statement, any preliminary prospectus, Statement or the Prospectus, or any amendment or supplement thereto does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Representations and Warranties of the Dealer Manager. The Dealer Manager hereby represents and warrants as follows as of the date hereof; provided, that, to the Companyextent such representations and warranties are given only as of a specified date or dates, with respect to the Offering, Dealer Manager only make such representations and warranties as applicable, thatof such date or dates:
a. 2.1. The Dealer Manager is a Delaware limited liability company duly formed, and validly formed and existing and in good standing under the laws General Corporation Law of the State of New York, Delaware with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consent, approval, authorization or 2.2. It is expressly understood between the Dealer Manager and the Sponsor that the Dealer Manager may cooperate with respect to the Offering and sale of the DST Interests with other order of any governmental authority is required in connection broker-dealers who are registered as broker-dealers with the execution SEC, members of FINRA and duly licensed by the appropriate regulatory agency of each jurisdiction in which they will conduct offers and sales of the DST Interests, or delivery with broker-dealers exempt from all such registration requirements. Such other Participating Intermediaries may be retained by the Dealer Manager as brokers on terms and conditions identical or similar to this Agreement and shall receive such rates of this Agreement.
c. The execution compensation as are agreed to between the Dealer Manager and delivery of this Agreement, the consummation of the transactions herein contemplated respective other Participating Intermediaries and compliance as are in accordance with the terms of this Agreement by hereof. At the Sponsor’s request, the Dealer Manager will not conflict provide to the Sponsor a list of all investors and broker-dealers with or constitute a default under (i) the Dealer Manager’s charter or by-laws, (ii) any indenture, mortgage, deed of trust or lease to which whom the Dealer Manager has initiated oral or any of its subsidiaries is a party or by which written discussions regarding the Dealer Manager or any of its subsidiaries or any of their properties is bound or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer Manager, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsOffering.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. 2.3. The Dealer Manager is, and during the term of this Agreement will be be, (ai) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (bii) a member of FINRA in good standing of FINRA and standing, (ciii) a broker-broker or dealer duly registered as such in those states or jurisdictions where the Dealer Manager is required to be registered in order to carry out the Offering Offerings as contemplated by this Agreement Agreement, (iv) it and the Prospectus. Each of the Dealer Manager’s its employees and representatives has all are properly registered and licensed as required licenses and registrations by any applicable law, rule, or regulation to act under this Agreement Agreement, and (v) it has established and implemented anti-money laundering compliance programs (the “AML Program”) in accordance with applicable law, including applicable FINRA rules, SEC rules and regulations (“Commission Rules”) and the USA PATRIOT Act, specifically including, but not limited to, Section 352 of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act” and together with the USA PATRIOT Act, the “AML Rules”) reasonably expected to carry out detect and cause the reporting of suspicious transactions in connection with the Offering and sale of the DST Interests. In addition, the Dealer Manager represents that it has established and implemented a program for compliance with all applicable regulations and programs administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control regulations (“OFAC Program”) and will continue to maintain its OFAC Program during the term of this Agreement. As of the date of this Agreement, the Dealer Manager is currently in compliance with all applicable AML Rules and OFAC Program requirements, specifically including, but not limited to, any Customer Identification Program requirements under Section 326 of the USA PATRIOT Act, and the Dealer Manager hereby agrees, upon request of the applicable Trust, to provide an annual certification to the applicable Trust that, as contemplated therebyof the date of such certification (i) its AML Program and its OFAC Program are consistent with the AML Rules and OFAC requirements applicable to it, (ii) it has continued to implement its AML Program and its OFAC Program as applicable to it, and (iii) it is currently in compliance with all applicable AML Rules and OFAC Program requirements, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the USA PATRIOT Act. There Further, there is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering Offerings as contemplated by this Agreement Agreement.
2.4. With respect to its participation and the Prospectus.
f. participation by each Participating Intermediary in the offer and sale of the DST Interests (including, without limitation, any resales and transfers of DST Interests), the Dealer Manager agrees, and, by virtue of entering into the Participating Intermediary Agreement, each Participating Intermediary shall have agreed, to comply and shall comply with all applicable requirements under the Securities Act, the Exchange Act, conduct rules of FINRA or its predecessor, the National Association of Securities Dealers, Inc. (“NASD”), Regulation Best Interest under the Exchange Act, and any other applicable foreign, state or local securities or other laws or rules of FINRA or any other applicable self-regulatory agency in offering and selling the DST Interests. The Dealer Manager represents and warrants to the Company agrees, and each person Participating Intermediary shall have agreed, to comply and shall comply with any applicable requirements with respect to its and each Participating Intermediary’s participation in any resales or transfers of the DST Interests. In addition, the Dealer Manager agrees, and each Participating Intermediary shall have agreed, that signs should it or they assist with the Registration Statement that resale or transfer of the information DST Interests, it and each Participating Intermediary will fully comply with all applicable FINRA or Commission Rules or any other applicable Federal or state laws, including Regulation D under the caption “Plan Securities Act.
2.5. No consent, approval, authorization or order of Distribution” in any court or other governmental agency, authority or body has been or is required for the Prospectus and all other information furnished to performance of this Agreement or for the Company consummation of the transactions contemplated herein by the Dealer Manager except as have been obtained under the Securities Act or the Exchange Act, from FINRA or as may be required under the applicable “blue sky” or other state securities laws.
2.6. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not and will not result in writing expressly for use in a breach of any of the Registration Statement, any preliminary prospectus, the Prospectusterms and provisions of, or any amendment constitute a default under (i) the Dealer Manager’s charter, bylaws or supplement thereto does not contain any untrue statement of a material fact or omit to state any material necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970other organizational documents, as amended by applicable, (ii) any indenture, mortgage, deed of trust, voting trust agreement, note, lease or other agreement or instrument to which the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently a party or by which the Dealer Manager is bound, or (iii) any rule or regulation or order of any court or other governmental agency or body with jurisdiction over the Dealer Manager except for such conflicts, breaches or defaults that do not result in compliance with all AML Rulesand could not reasonably be expected to result in, includingindividually or in the aggregate, but not limited toa Dealer Manager MAE (as defined below). As used in this Agreement, “Dealer Manager MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the Customer Identification Program requirements under Title III aggregate, that is, or could reasonably be expected to be, materially adverse to (A) the condition, financial or otherwise, earnings, business, affairs or prospects of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed or (B) the ability of the Dealer Manager to ensure compliance by perform its obligations under this Agreement or the validity or enforceability of this Agreement against the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Blue Owl Real Estate Net Lease Trust)
Representations and Warranties of the Dealer Manager. The Dealer Manager represents and warrants to the Company, with respect to the Offering, as applicable, Company that:
a. The Dealer Manager is a limited liability company duly formedorganized, validly existing and in good standing under the laws of the State of New YorkColorado, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
b. No consentThis Agreement has been duly authorized, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery executed and delivered by the Dealer Manager Manager, and assuming due authorization, execution and delivery of this AgreementAgreement by the Company, will constitute a valid and legally binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability and except that rights to indemnity and contribution hereunder may be limited by applicable law and public policy.
c. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Dealer Manager will not conflict with or constitute a default under (i) the Dealer Manager’s charter or by-lawsits organizational documents, (ii) any indenture, mortgage, deed of trust or lease to which the Dealer Manager or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Dealer Manager or any of its subsidiaries or any of their properties is bound subject, or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Dealer ManagerManager or any subsidiary or any of their assets, properties or operations, except to in the extent case of clause (ii) or (iii) for such conflicts or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the indemnity and/or contribution provisions contained in Section 5 of this Agreement may be limited under applicable securities lawsDealer Manager and its subsidiaries taken as a whole.
d. The Dealer Manager 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 5 of this Agreement may be limited under applicable securities laws.
e. The Dealer Manager is, and during the term of this Agreement will be (a) be, duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (b) a broker-dealer duly registered as such in the State of Colorado, a member in good standing of FINRA the Financial Industry Regulatory Authority, Inc. ( “FINRA”), and (c) a broker-broker or dealer duly registered as such in those states where the Dealer Manager is required to be registered in order to carry out the Offering as Private Placements contemplated by this Agreement the Memorandum and the ProspectusProperty Supplements. Each of the Dealer Manager’s employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
f. The Dealer Manager represents is in compliance with all applicable rules and warrants regulations to which it is subject, including without limitation, those under the Company Exchange Act and each person that signs the Registration Statement that the Rules promulgated by FINRA.
e. The information under the caption “Plan of DistributionPrivate Placement” in the Prospectus Memorandum and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any preliminary prospectus, the ProspectusMemorandum, or any amendment or supplement thereto thereto, does not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
g. The Dealer Manager has established and implemented an anti-money laundering compliance program (the “AML Program”) in compliance with applicable law, including applicable FINRA Conduct Rules, the Exchange Act and the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act of 2001 (the “USA Patriot Act”) (collectively, the “AML Rules”). The Dealer Manager is currently in compliance with all AML Rules, including, but not limited to, the Customer Identification Program requirements under Title III of the USA Patriot Act.
h. The Dealer Manager has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Dealer Manager, its subsidiaries and their respective officers, directors, employees and agents with (i) all applicable economic sanctions or trade embargoes (“Sanctions”), including but not limited to those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State, and (ii) applicable anti-corruption or anti-bribery laws and regulations (“Anti-Corruption Laws”), including but not limited to the Foreign Corrupt Practices Act. The Dealer Manager is not subject to or the target of any Sanctions and is in compliance with Sanctions and Anti-Corruption Laws.
Appears in 1 contract
Samples: Dealer Manager Agreement (Dividend Capital Diversified Property Fund Inc.)
