Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the Sales Manager as of the date of this Sales Agreement and as of each Settlement Date, as follows: (a) (i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning the Sales Manager and furnished in writing by or on behalf of the Sales Manager to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (i) The Fund has been duly formed, is validly existing as a statutory trust under the laws of the state of Delaware, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares to be issued and sold in accordance with this Sales Agreement against payment therefor as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the Common Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or the By-laws of the Fund, (B) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE Amex or under state securities or “blue sky” laws, in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report is incorporated by reference in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales Materials; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Sales Agreement (Gabelli Global Gold, Natural Resources & Income Trust), Sales Agreement (Gabelli Global Gold, Natural Resources & Income Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the Sales Manager as of the date of this Sales Agreement and as of each Settlement Date, as follows: (a) (i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning the Sales Manager and furnished in writing by or on behalf of the Sales Manager to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (i) The Fund has been duly formed, is validly existing as a statutory trust under the laws of the state of Delaware, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares to be issued and sold in accordance with this Sales Agreement against payment therefor as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the Common Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or the By-laws of the Fund, (B) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE ~~Amex~~ MKT or under state securities or “blue sky” laws, in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE ~~Amex (which acquired the American Stock Exchange)~~ MKT and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report is incorporated by reference in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales Materials; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust by Gabelli)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of the ~~state~~ Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, ~~the Sub-Administration Agreement~~ and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the American~~ New York Stock ~~Exchange)~~ Exchange and the ~~Notification~~ Fund's Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"), has become effective. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares other than the definitive client brochure and the broker selling memo which were filed with the NASD on October 15, 2002, a draft prospecting letter which was filed with the NASD on November 1, 2002, and a draft of a prospecting letter made available on an Intranet web site maintained by the Investment Adviser (collectively, the "sales materials"); the sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Underwriting Agreement (Eaton Vance Insured Massachusetts Municipal Bond Fund), Underwriting Agreement (Eaton Vance Insured Florida Municipal Bond Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Massachusetts business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adverse Effect (~~iii~~as defined below in Section 3(m)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adverse Effect (~~iv) the~~ as defined below in Section 3(m)). The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the ~~Custodian~~ Custody Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the Amended and Restated Bylaws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect (as defined below in Section 3(m)). (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rp) The ~~Fund has not distributed and~~Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the ~~final Settlement Date~~Closing Date will be, ~~will not distribute~~ assigned a rating of "Aaa" by Xxxxx'x Investors Service, Inc. (r) No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Underwriting Agreement (John Hancock Preferred Income Fund Iii), Underwriting Agreement (John Hancock Preferred Income Fund Ii)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the Sales Manager as of the date of this Sales Agreement and as of each Settlement Date, as follows: (a) (i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; ~~(ii)~~ (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning the Sales Manager and furnished in writing by or on behalf of the Sales Manager to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (i) The Fund has been duly formed, is validly existing as a statutory trust under the laws of the state of Delaware, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares to be issued and sold in accordance with this Sales Agreement against payment therefor as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the Common Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or the By-laws of the Fund, (B) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE ~~Amex~~ American or under state securities or “blue sky” laws, in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE ~~Amex (which acquired the~~ American ~~Stock Exchange)~~ and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report is incorporated by reference in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets attributable to common shareholders (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales Materials; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of ~~the state~~ The Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement, the DTC Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust of the Fund, as amended through the date hereof, or the Amended and Restated By-laws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (Bthe "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are ~~duly authorized for listing, subject to official notice of issuance,~~ listed on the ~~NYSE Amex (which acquired the American~~ New York Stock Exchange~~) and the Notification has become effective~~. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The ~~Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in~~Shares have been, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant prior to the ~~Fund’s Dividend Reinvestment Plan effected following the date on which the distribution~~ Closing Date will be, assigned a rating of ~~the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization~~"AAA" by Fitch and "Aaa" by Xxxxx'x. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares (collectively, the "sales materials"); any sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the National Association of Securities Dealers, Inc.; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Underwriting Agreement (Eaton Vance Senior Floating Rate Trust), Underwriting Agreement (Eaton Vance Tax Advantaged Dividend Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Massachusetts business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adverse Effect (~~iii~~as defined below in Section 3(m)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adverse Effect (~~iv) the~~ as defined below in Section 3(m)). The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the ~~Custodian~~ Custody Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the Amended and Restated Bylaws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect (as defined below in Section 3(m)). (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers LLP[ ], whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rp) The ~~Fund has not distributed and~~Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the ~~final Settlement Date~~Closing Date will be, ~~will not distribute~~ assigned a rating of "Aaa" by Xxxxx'x Investors Service, Inc. (r) No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 2 contracts

Samples: Underwriting Agreement (Hancock John Investors Trust), Underwriting Agreement (Hancock John Income Securities Trust /Ma)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of the ~~state~~ Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, ~~the Sub-Administration Agreement~~ and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ American Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the~~ American Stock ~~Exchange)~~ Exchange and the ~~Notification~~ Fund's Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"), has become effective. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares other than the definitive client brochure and the broker selling memo which were filed with the NASD on , 2003, a draft prospecting letter which was filed with the NASD on , 2003, and a draft of a prospecting letter made available on an Intranet web site maintained by the Investment Adviser (collectively, the "sales materials"); the sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Limited Duration Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the Sales Manager as of the date of this Sales Agreement and as of each Settlement Date, as follows: (a) (i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (~~ii) (~~A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the ~~Common~~ Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. (the “~~FINRA~~NASD”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the ~~Common~~ Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning the Sales Manager and furnished in writing by or on behalf of the Sales Manager to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (i) The Fund has been duly formed, is validly existing as a statutory trust under the laws of the state of Delaware, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The ~~Common~~ Shares to be issued and sold in accordance with this Sales Agreement against payment therefor as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or the By-laws of the Fund, (B) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the ~~Common~~ Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ American Stock Exchange or under state securities or “blue sky” laws, in connection with the distribution of the ~~Common~~ Shares by the Sales Manager pursuant to this Sales Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the~~ American Stock ~~Exchange)~~ Exchange and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the ~~Common~~ Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the ~~Common~~ Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales ~~Materials~~Materials other than [the definitive client brochure and the broker selling memo which were filed with the NASD on [•], 2007, a draft prospecting letter which was filed with the NASD on [•], 2007, and a draft of a prospecting letter made available on a password-protected Internet web site maintained by the Investment Adviser; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the ~~Common Shares~~ Share shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Sales Agreement (Gabelli Global Gold, Natural Resources & Income Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: ~~(a)~~ (i) (A) the Registration Statement has heretofore become effective under the Securities Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act, will be filed with the Commission and become effective under the Securities Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; and (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus ~~or Sales Materials~~ or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission~~; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act;~~. (ii) On (A1) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the Securities Act, as the case may be, (2) the date on which any post- effective amendment to the Registration Statement ~~complied at~~ (except any post- effective amendment which is filed with the ~~Effective Time, complies as~~ Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the ~~date hereof and~~Shares is completed) became or becomes effective or any amendment or supplement to the Prospectus was or is filed with the Commission and (3) the Closing Date, ~~as amended~~ the Registration Statement, the Prospectus and any such amendment or ~~supplemented, at each Settlement Date~~ supplement thereto and ~~at all times during which a prospectus is required by~~ the ~~Securities Act to be delivered in connection with any sale of Common Shares,~~ Notification complied or will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and~~, as ~~amended or supplemented~~the case may be. At the Applicable Time, ~~at each Settlement Date and at all times during which a prospectus is required by~~ the ~~Securities Act to be delivered in connection with any sale of Common Shares, will comply,~~ Pricing Prospectus complied in all material respects with the requirements of the Securities Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading; . Except as permitted under Rule 430 under the Securities Act (~~B) at no time during~~ and other applicable rules under Regulation C under the ~~period that begins~~ Securities Act), the Disclosure Package did not, as of the Applicable ~~Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an~~ Time, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C) at no time during~~ . At the ~~period that begins~~ Effective Date and, if applicable, the date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and at the ~~time each of~~ Closing Date, the ~~Sales Materials was first used in connection with~~ Prospectus did not or will not, as the ~~public offering of the Common Shares and ends at the final Settlement Date did~~ case may be, contain any ~~of the Sales Materials in use at the applicable time include an~~ untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; and (D~~. The foregoing representations in this Section 3(a)(ii) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (i) The Fund has been duly formed, is validly existing as a ~~statutory trust~~ corporation under the laws of the state of ~~Delaware~~Maryland, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Pricing Prospectus and the Prospectus, except where the failure to obtain such licenses, permits, consents, orders, approvals and other authorizations, either alone or in the aggregate, would not reasonably be expected to have a material adverse effect on the Fund; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus. The Common Shares conform in all material respects to the description of them in the Pricing Prospectus and the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The ~~Common~~ Fund's currently outstanding RPS and the Existing APS conform in all material respects to the description of them in the Prospectus. All the outstanding RPS and the Existing APS have been duly authorized and are validly issued, fully paid and nonassessable. The Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the ~~Transfer~~ Administration Agreement, the Service Agreement, the Remarketing Agreement, the Auction Agency Agreement, the ~~Sub-Administration~~ DTC Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (Ax) the ~~Declaration~~ Articles of ~~Trust~~ Incorporation, RPS Articles Supplementary or ~~the By-laws~~ bylaws of the Fund, each as amended through the date hereof, (By) the APS Articles Supplementary and the Rating Agency Guidelines, each as amended through the date hereof, or (z) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than (a) state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales Agreement~~Underwriting Agreement or (b) in the case of clause (z), that would not reasonably be expected to have a material adverse effect on the Fund. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or ~~affected~~affected except for any breach or default that would not reasonably be expected to have a material adverse affect on the Fund. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE ~~Amex~~ or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are ~~duly authorized for listing, subject to official notice of issuance,~~ listed on the ~~NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective~~NYSE. (k) ~~PricewaterhouseCoopers~~ Ernst & Young LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The financial statements ~~of assets and liabilities, (operations and changes in net assets (including the notes thereto)~~ included or incorporated by reference in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus (including the statement of assets and liabilities, schedule of investments, statement of operations, statement of changes in net asset value, statement of cash flows and the notes to such financial statements) presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the ~~condition,~~ condition (financial or otherwise), ~~business~~ business, prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration ~~Statement~~ Statement, the Pricing Prospectus or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Shares have been, or prior to the Closing Time will be, assigned a rating of "AAA" by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's"). (q) The issuance of the Shares shall not result in a suspension, qualification, withdrawal or downgrade of any of the ratings assigned by Moody's and S&P to the outstanding RPS of the Fund. (r) The Fund has not ~~taken and will not take~~distributed and, ~~directly or indirectly, any action designed or which might be reasonably expected~~ prior to ~~cause or result in, or which will constitute,~~ the later to occur of the (i) ~~manipulation~~ Closing Time and (b) completion of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the ~~Common Shares is completed~~ Shares, will not distribute any offering material in ~~accordance~~ connection with the ~~policies~~ public offering or sale of the ~~Fund as set forth in~~ Shares other than the Registration Statement, the Disclosure Package, and the Prospectus~~, stabilization~~. (qs) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rt) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there There are no Sales ~~Materials;~~ Materials and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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 misleadingAdviser. (tu) Except as disclosed in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement to ~~any~~ either of them), to the Fund’s 's knowledge, after due inquiry, no ~~trustee~~ director of the Fund is an “"interested person” " (as defined in the ~~Investment Company Act~~0000 Xxx) of the Fund or an “"affiliated person” " (as defined in the ~~Investment Company Act~~0000 Xxx) of any Underwriter listed in Schedule A hereto. (v) The Fund has elected to be treated, and has qualified, as a regulated investment company within the ~~Sales Manager~~meaning of Section 851 of the Code for each taxable year of the Fund beginning on or prior to the Closing Time. In addition, any certificate signed by any officer of the Fund and delivered to the ~~Sales Manager~~ Underwriters or ~~its~~ counsel for the Underwriters in connection with the offering of the ~~Common~~ Shares shall be deemed to be a representation and warranty by the ~~Fund,~~ Fund as to matters covered thereby, to ~~the Sales Manager~~each Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (DNP Select Income Fund Inc)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Massachusetts business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adverse Effect (~~iii~~as defined below in Section 3(m)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adverse Effect (~~iv) the~~ as defined below in Section 3(m)). The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the ~~Custodian~~ Custody Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the Amended and Restated Bylaws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect (as defined below in Section 3(m)). (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rp) The ~~Fund has not distributed and~~Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the ~~final Settlement Date~~Closing Date will be, ~~will not distribute~~ assigned a rating of "Aaa" by Moody's Investors Service, Inc. (r) No advertising, sales literxxxxx xr other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (John Hancock Tax-Advantaged Dividend Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Massachusetts business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adviser Effect (~~iii~~as defined below in Section 3(n)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and ~~(iv)~~ other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adviser Effect. The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Securities Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the ~~Custodian~~ Custody Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the Amended and Restated Bylaws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect. (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rp) The ~~Fund has not distributed and~~Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the ~~final Settlement Date~~Closing Date will be, ~~will not distribute~~ assigned a rating of "Aaa" by Xxxxx'x Investors Service, Inc. (r) No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (John Hancock Preferred Income Fund)

Appears in 1 contract

Samples: Underwriting Agreement (Pimco Corporate Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the ~~Sales Manager~~ Distributor as of the date of this ~~Sales~~ Distribution Agreement and as of ~~each Settlement~~ the Expiration Date, as follows: (a) ~~(i) (A)~~ The Fund meets the requirements for use of Form N-2 under the Securities Act and the Investment Company Act. At the time the Registration Statement ~~has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing~~ became or ~~suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ becomes effective, the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended did or ~~supplemented, at each Settlement Date and at~~ will contain all ~~times during which a prospectus is~~ statements required ~~by the Securities Act~~ to be ~~delivered~~ stated therein in ~~connection~~ accordance with ~~any sale of Common Shares,~~ and did or will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and ~~the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time~~ did ~~not, (2) the Registration Statement (including any post-effective amendment thereto declared~~ not or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will ~~not, in each case,~~ not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading~~; (B) at no~~ . From the time ~~during~~ the ~~period that begins as of~~ Registration Statement became or becomes effective through the ~~Applicable Time~~ Expiration Date, the Prospectus and ~~ends at~~ the ~~final Settlement Date did or~~ other Sales Materials will ~~the Disclosure Package in use at the applicable time include~~ not contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required ~~by the Securities Act~~ to be ~~delivered in connection with any sale of Common Shares did~~ stated therein or ~~will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact~~ necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that ~~each of~~ the ~~Fund~~ representations and ~~the Investment Adviser makes no representation~~ warranties in this subsection shall not apply to statements in or ~~warranty with respect to any statement contained in~~ omissions from the Registration Statement, ~~the Disclosure Package~~ Prospectus or ~~the Prospectus~~ Sales Materials made in reliance upon and in conformity with information ~~concerning~~ relating to the ~~Sales Manager and~~ Distributor furnished to the Fund in writing by ~~or on behalf of~~ the ~~Sales Manager to the Fund~~ Distributor expressly for use in the Registration Statement, ~~the Disclosure Package~~ Prospectus or ~~the Prospectus as described in Section 9(f~~other Sales Materials. (b) ~~hereof;~~ The Fund (i) ~~The Fund~~ has been duly ~~formed,~~ organized and is validly existing as a statutory trust in good standing under the laws of the ~~state~~ State of Delaware, ~~with~~ (ii) has full statutory trust power and authority to ~~conduct all the activities conducted by it~~own, ~~to own or~~ lease ~~all assets owned or leased by it~~ and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus; , (iiiii) currently maintains all necessary licenses, permits, consents, orders, approvals and other authorizations (collectively, the ~~Fund~~ “Licenses and Permits”) necessary to carry on its business as contemplated in the Prospectus, (iv) has made all necessary filings required under any federal, state, local or foreign law, regulation or rule and (v) is duly ~~licensed and~~ qualified to do business and in good standing in each jurisdiction wherein it owns or leases real property or in which the conduct of its ~~ownership or leasing of property or its conducting of~~ business requires such qualification, except where the failure to obtain or maintain such Licenses and Permits, to make such filings or be so qualified ~~or be~~ and in good standing would not have a material adverse effect on upon the Fund~~; (iii) the Fund owns~~’s business, ~~possesses~~ properties, management, prospects, financial position or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the results of operations. The Fund has no subsidiaries. (c) The Fund is duly registered with the Commission under the Investment Company Act as a closed-end, non-diversified management investment company, no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the best of the Fund’s and the Investment Adviser’s knowledge, threatened by the Commission, all required action has been taken by the Fund under the Securities Act and the Investment Company Act to make the public offering and to consummate the issuance of the Shares, and the provisions of the Fund’s certificate of trust, declaration of trust and by-laws, as amended to the date hereof (the “Organizational Documents”) comply as to form in all material respects with the requirements of the Investment Company Act. (d) Ernst & Young LLP, the independent registered public accounting firm which certified the financial statements of the Fund set forth or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm as required by the Investment Company Act, the Securities Act and by the rules of the Public Company Accounting Oversight Board. (e) The financial statements of the Fund, together with the related notes and schedules thereto, set forth or incorporated by reference in the Registration Statement and the Prospectus present fairly in all material respects the financial condition of the Fund as of the dates or for the periods indicated in conformity with generally accepted accounting principles applied on a consistent basis. (f) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares and Preferred Shares each conform in all material respects to the ~~description of them~~ descriptions in the Prospectus. All the outstanding Common Shares and Preferred Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares and Preferred Shares to be issued and sold in accordance with this ~~Sales~~ Distribution Agreement against payment therefor as provided by this ~~Sales~~ Distribution Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares and Preferred Shares. (dg) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales This Distribution Agreement has ~~or will have~~ been ~~taken~~ duly authorized, executed and delivered by the Fund~~. (e) The Fund has full power and authority to enter into each~~ . Each of ~~this Sales Agreement,~~ the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement, the Escrow Agent Agreement and the Dividend Reinvestment Plan (collectively, all the foregoing agreements set forth in this sentence are the “Fund Agreements”~~) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement~~ ), has been or will be duly ~~and validly~~ authorized, executed and delivered by ~~or on behalf~~ the Fund; each of the ~~Fund, (ii) each~~ Fund ~~Agreement does not violate any of the~~ Agreements complies with all applicable provisions of the Investment Company ~~Act or~~ Act, the Investment Advisers Act of 1940, as ~~amended,~~ amended (the “Advisers Act”) and the rules and regulations ~~thereunder (collectively called the “Advisers Act”)~~under such Acts; and, ~~as the case may be, and (iii)~~ assuming due authorization, execution and delivery by the other parties thereto, each of the Fund ~~Agreement~~ Agreements constitutes ~~the~~ or will constitute a legal, ~~valid~~ valid, binding and ~~binding~~ enforceable obligation of the ~~Fund enforceable in accordance with its terms~~Fund, ~~(A) subject, as~~ subject to ~~enforcement, to applicable~~ the qualification that the enforceability of the Fund’s obligations thereunder may be limited by bankruptcy, ~~insolvency~~ insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ ~~rights generally and~~ rights, to general ~~equitable~~ principles of equity (regardless of whether ~~enforcement~~ enforceability is ~~sought~~ considered in a proceeding in equity or at law) ~~and (B) except as rights~~ and, in the case of the Investment Advisory Agreement, to ~~indemnity thereunder may be limited by federal or state securities laws~~termination under the Investment Company Act. (fh) ~~None~~ Neither the issuance of ~~(i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the~~ Common Shares ~~as contemplated by~~ and Preferred Shares pursuant to this ~~Sales Agreement~~ Offering nor the execution, delivery, performance and ~~(iii) the performance by the Fund of its obligations under any of the Fund Agreements or~~ consummation by the Fund of any other of the ~~other~~ transactions contemplated by in this Distribution Agreement and the Fund ~~Agreements conflicts~~ Agreements, nor the consummation of the transactions contemplated in this Distribution Agreement or in the Registration Statement or the Prospectus, nor the fulfillment of the terms hereof or thereof will conflict with or ~~will~~ violate the Organizational Documents, or conflict with, ~~or results or will~~ result in a breach or violation of, ~~(A)~~ or constitute a default or an event of default under, or result in the ~~Declaration~~ creation or imposition of ~~Trust~~ any lien, charge or ~~the By-laws~~ encumbrance upon any properties or assets of the ~~Fund~~Fund under the Organizational Documents, ~~(B)~~ or under the terms and provisions of any ~~agreement~~ material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Fund is a party or by which it may be bound or to which any of the property or assets of the Fund is ~~bound~~subject, ~~or (C)~~ nor will such action result in any violation of any order, law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order regulation of any court or governmental agency or body having jurisdiction over the Fund or ~~securities exchange~~ any of its properties. (i) There is no pending or, to the knowledge of the Fund or ~~association~~the Investment Adviser, ~~whether foreign~~ threatened action, suit, claim, investigation or ~~domestic~~proceeding affecting the Fund or to which the Fund is a party before or by any court or governmental agency, authority or body or any arbitrator which might result in any material adverse change in the condition (financial or other), business prospects, net worth or operations of the Fund, or which might materially and adversely affect the properties or assets thereof of a character required to be disclosed in the Registration Statement or the Prospectus or the consummation of the transactions contemplated hereby. (j) There are no franchises, contracts or other documents of the Fund that are material or otherwise required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement which are not described or filed or incorporated by reference therein as permitted by the Securities Act and the Investment Company Act. (k) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any court or governmental agency or body is required ~~by the Fund~~ for the consummation by the Fund of the transactions contemplated by this Distribution Agreement or the Fund Agreements to be ~~performed~~ consummated by the ~~Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements~~Fund, except such as ~~(i)~~ have been obtained under the ~~Securities Act, the~~ Investment Company Act, or the ~~Advisers~~ Securities Act and the Exchange Act, ~~and~~ any NYSE rules, any NYSE MKT LCC (ii“NYSE MKT”) ~~may be required~~ rules, or by the ~~NYSE Amex or under state securities or~~ Financial Industry Regulatory Authority Inc. (“~~blue sky” laws~~FINRA”). (l) Prior to their issuance, ~~in connection with the distribution of~~ the Common Shares by and the ~~Sales Manager pursuant to this Sales Agreement. (j) The Common~~ Preferred Shares ~~are~~ will have been duly ~~authorized~~ approved for listing, subject to official notice of issuance, on the NYSE ~~Amex (which acquired~~ or NYSE MKT, as applicable. Prior to their offering, Combinations will have been duly approved for listing, subject to official notice of issuance, on the ~~American Stock Exchange) and the Notification has become effective~~NYSE or NYSE MKT. (km) ~~PricewaterhouseCoopers LLP~~The Fund (A) has not taken, ~~whose report is incorporated by reference~~ directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Fund to facilitate the issuance of the Common Shares or the Preferred Shares or the sale of Combinations, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any compensation for soliciting purchases of, Common Shares or Preferred Shares of the Fund and (C) will not, until the later of the expiration of the Offering (within the meaning of the anti-manipulation rules under the Exchange Act), sell, bid for or purchase, pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Fund; provided that any action in connection with the Fund’s automatic dividend reinvestment and voluntary cash purchase plan will not be deemed to be within the terms of this Section 4(m). (n) The Fund intends to direct the investment of the proceeds of the offering described in the ~~Prospectus~~Registration Statement and the Prospectus in such a manner as to comply, ~~is an independent registered public accounting firm~~ with ~~respect~~ the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (“Subchapter M of the Code”), and intends to qualify as a regulated investment company under Subchapter M of the Code. (o) The Fund intends to direct the investment of the proceeds of the offering described in the Registration Statement and the Prospectus in such a manner as ~~required by~~ to comply, with the ~~Securities Act~~ asset coverage and other applicable requirements of the Investment Company Act. (lp) The ~~statements~~ Fund has (a) appointed a Chief Compliance Officer and (b) adopted and implemented written policies and procedures which the Board of ~~assets~~ Trustees of the Fund has determined are reasonably designed to prevent violations of the federal securities laws in a manner required by and ~~liabilities, (operations~~ consistent with Rule 38a-1 of the rules and ~~changes~~ regulations under the Investment Company Act and is in ~~net assets (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly~~ compliance in all material ~~respects, in accordance~~ respects with ~~generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated~~such Rule. (mq) The Sales Materials comply with in all material respects the requirements of the Securities Act, the Investment Company Act and the rules and interpretations of FINRA. Other than the Sales Materials, the Fund has not, without the written permission of the Distributor, used, approved, prepared or authorized any letters from the Fund to securities dealers, commercial banks and other nominees or any newspaper announcements or other offering materials and information in connection with the Offering; provided, however, that any use of transmittal documentation and subscription documentation independently prepared by the Distributor, broker-dealers, trustees, nominees or other financial intermediaries shall not cause a violation of this section 4(q). (r) Any Sales Materials authorized in writing by or prepared by the Fund or the Investment Adviser used in connection with the issuance of the Shares does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (s) The Fund maintains a system of internal accounting controls sufficient to provide reasonable ~~assurances~~ assurance that (iA) transactions are executed in accordance with management’s general or specific authorization; (iiB) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. generally accepted accounting principles and to maintain accountability for assets; (~~iii~~C) access to assets is permitted only in accordance with management’s general or specific authorization; and (ivD) the recorded accountability for assets is compared with existing assets ~~through an asset reconciliation procedure or otherwise~~ at reasonable intervals and appropriate action is taken with respect to any differences. (nt) ~~Since~~ The Fund has established and maintains disclosure controls and procedures; such disclosure controls and procedures (as such term is defined in Rule 30a-3 under the ~~date as~~ Investment Company Act) are designed to ensure that material information relating to the Fund is made known to the Fund’s Chief Executive Officer and its Chief Financial Officer, or any other persons of similar title, by others within the Fund, and such disclosure controls and procedures are effective to perform the functions for which ~~information is given~~ they were established; the Fund’s independent registered public accounting firm and the Audit Committee of the Board of Trustees of the Fund have been advised of: (A) any significant deficiencies in the ~~Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition,~~ design or operation of internal controls over financial ~~or otherwise, business prospects, properties, net assets or results of operations of~~ reporting which could adversely affect the Fund’s ability to record, process, summarize, and report financial data; and (B) any fraud, whether or not ~~arising~~ material, that involves management or other employees who have a role in the ~~ordinary course~~ Fund’s internal controls over financial reporting; any material weaknesses in the Fund’s internal controls over financial reporting have been identified for the Fund’s independent registered public accounting firm; and since the date of ~~business~~ the most recent evaluation of such disclosure controls and ~~(ii)~~ procedures, there have been no ~~transactions entered into by the Fund~~ significant changes in internal controls over financial reporting or in other ~~than those in the ordinary course of its business~~factors that could materially affect internal controls over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses. (ou) ~~There is no action~~The Fund and its officers and trustees, ~~suit or proceeding before or by any court~~in their capacities as such, ~~commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to~~ are in compliance in all material respects with the ~~knowledge~~ applicable provisions of the ~~Fund, threatened against or affecting~~ Xxxxxxxx-Xxxxx Act of 2002 and the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; rules and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as requiredregulations promulgated thereunder. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales Materials; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (tv) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales ManagerDistributor.

Appears in 1 contract

Samples: Distribution Agreement (Gabelli Go Anywhere Trust)

Appears in 1 contract

Samples: Distribution Agreement (Gabelli Go Anywhere Trust)

Representations and Warranties of the Fund and the Investment Adviser. ~~Each of the~~ The Fund and the Investment ~~Adviser~~ Adviser, jointly and ~~severally represents~~ severally, represent and ~~warrants~~ warrant to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date, as follows~~Underwriter that: (a) ~~(i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order~~ Each Prepricing Prospectus included as part of the ~~Commission preventing~~ registration statement as originally filed or ~~suspending the use~~ as part of any ~~Preliminary Prospectus~~ amendment or ~~Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued~~supplement thereto, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was when so filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the ~~requirements~~ provisions of the ~~Securities~~ 1933 Act, the 1940 Act and the Rules and Regulations. (~~including~~b) The Registration Statement, ~~without limitation, Section 10(a)~~ in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the ~~Securities Act)~~ 1933 Act Rules and Regulations and the ~~Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection~~ 1940 Act Notification when originally filed with the ~~public offering of~~ Commission and any amendment or supplement thereto when filed with the ~~Common Shares, and complies as of the date hereof,~~ Commission complied or will comply in all material respects with the ~~requirements~~ provisions of the ~~Securities Act (including, without limitation, Rule 482 thereunder)~~1933 Act, the ~~Investment Company~~ 1940 Act and the ~~applicable rules~~ Rules and ~~interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time~~ Regulations and did ~~not, (2) the Registration Statement (including~~ not or will not at any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein ~~not misleading;~~ (~~B) at no time during~~ in the ~~period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement~~ case of a ~~material fact or omit to state a material fact necessary in order to make the statements therein~~prospectus, in ~~the~~ light of the circumstances under which they were made, ) not misleading; ~~(C) at no time during the period~~ except that ~~begins at the time each of the Sales Materials was first used~~ this representation and warranty does not apply to statements in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in omissions from the Registration ~~Statement, the Disclosure Package~~ Statement or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with information ~~concerning~~ relating to any Underwriter furnished to the ~~Sales Manager and furnished~~ Fund in writing by or on behalf of ~~the Sales Manager to the Fund~~ any Underwriter through you expressly for use therein. (c) All the outstanding Common Shares of the Fund have been duly authorized and validly issued, are fully paid and, except as described in the Registration Statement, nonassessable and are free of any preemptive or similar rights; the ~~Disclosure Package or~~ Shares have been duly authorized and, when issued and delivered to the ~~Prospectus~~ Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and, except as described in ~~Section 9(f) hereof;~~the Registration Statement, nonassessable and free of any preemptive or similar rights and the capital stock of the Fund conforms to the description thereof in the Registration Statement and the Prospectus (and any amendment or supplement to either of them). (id) The Fund has been duly ~~formed,~~ formed and is validly existing in good standing as a statutory trust under the laws of the ~~state~~ State of Delaware, with full power and authority to ~~conduct all the activities conducted by it~~own, ~~to own or~~ lease ~~all assets owned or leased by it~~ and operate its properties and to conduct its business as described in the Registration Statement and the ~~Prospectus;~~ Prospectus (iiand any amendment or supplement to either of them) ~~the Fund~~ and is duly ~~licensed~~ registered and qualified to do conduct business and is in good standing in each jurisdiction ~~in which~~ or place where the nature of its ~~ownership~~ properties or ~~leasing~~ the conduct of ~~property or~~ its ~~conducting of~~ business requires such registration or qualification, except where the failure so to ~~be so qualified~~ register or ~~be in good standing would~~ to qualify does not have a ~~material~~ material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the . The Fund has no subsidiaries. (ce) ~~The capitalization~~ There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened, against the Fund or to which the Fund or any of its properties is ~~as set forth~~ subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required by the 1933 Act, the 1940 Act or the Rules and ~~the Prospectus. The Common Shares conform in all material respects~~ Regulations and there are no agreements, contracts, indentures, leases or other instruments that are required to ~~the description of them~~ be described in the ~~Prospectus. All~~ Registration Statement or the ~~outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares~~ Prospectus (or any amendment or supplement to either of them) or to be ~~issued and sold in accordance with this Sales Agreement against payment therefor~~ filed as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments an exhibit to the Registration Statement that are not described or ~~such registration statements or~~ filed as required by the ~~Prospectus, all action under the Securities Act and the Investment Company~~ 1933 Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company 1940 Act or the ~~Investment Advisers Act of 1940, as amended,~~ Rules and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities lawsRegulations. (f) ~~None of (i) the execution and delivery by the~~ The Fund ~~of the Fund Agreements, (ii) the issue and sale by the Fund of the Common Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund~~ is not in violation of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or ~~the~~ By-~~laws~~ Laws or in material violation of any material law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any material decree of the ~~Fund~~Commission, ~~(B)~~ the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over the Fund or in breach or default in any material respect in the performance of any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Fund is a party or by which ~~the Fund is~~ it or any of its properties may be bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) ~~The~~ Neither the issuance and sale of the Shares, the execution, delivery or performance of this Agreement nor any of the Fund is Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing which has not ~~currently~~ yet been obtained or made with the Commission, the NASD, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach ~~of,~~ of the Declaration of Trust or in By-Laws of the Fund or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any ~~written~~ material agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which it is a party or by which it ~~or its property is~~ may be bound or ~~affected~~to which any of the property or assets of the Fund is subject. (h) ~~No person has any right to~~ Since the ~~registration~~ date as of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, which information is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE Amex or under state securities or “blue sky” laws, in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report is incorporated by reference in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets (including the notes thereto) included or incorporated by reference given in the Registration Statement and the Prospectus ~~presents~~ (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund which are material to the Fund other than those in the ordinary course of its business as described in the Prospectus (and any amendment or supplement thereto) and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its common stock. (i) The accountants, Ernst & Young LLP, who have audited or shall audit at or prior to the Closing Date the Statement of Assets and Liabilities included in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), are an independent public accounting firm as required by the 1933 Act, the 1940 Act and the Rules and Regulations. (j) The financial statements, together with related schedules and notes, included in the Registration Statement and the Prospectus (or any amendment or supplement to either of them) present fairly the financial position of the Fund on the basis stated in ~~all material respects,~~ the Registration Statement and the Prospectus at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as disclosed therein; and the other financial and statistical information and data included in the ~~United States applied on a consistent basis~~Registration Statement or the Prospectus (or any amendment or supplement thereto) are accurately derived from such financial statements and the books and records of the Fund. (k) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497 under the Rules and Regulations, has taken all required action under the 1933 Act, the ~~financial position~~ 1940 Act and the Rules and Regulations to make the public offering and consummate the sale of the Shares as contemplated by this Agreement. (l) The execution and delivery of and the performance by the Fund as of its obligations under, this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and constitute the valid and legally binding agreements of the ~~date indicated~~Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles. (m) Except as disclosed in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), the Fund has not incurred any liability or obligation, direct or contingent, that is material to the Fund and there has not been any change in the capital stock or material increase in the short-term debt or long-term debt of the Fund. (n) The Fund has not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Shares, will not distribute to the public in either printed or electronic form any offering material in connection with the offering and sale of the Shares other than the Registration Statement, the Prepricing Prospectus included in Pre-Effective Amendment No.1 to the Registration Statement, the Prospectus and the advertisements/sales literature filed by _______ with the NASD on ______, 2003. (o) The Fund has such licenses, permits, and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); the Fund has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows or, after notice or lapse of time, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Fund. (p) The Fund maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific ~~authorization~~authorization and with the investment policies and restrictions of the Fund and the applicable requirements of the 1940 Act, the 1940 Act Rules and Regulations and the Internal Revenue Code of 1986, as amended (the "Code"); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting ~~principles and~~ principles, to calculate net asset value, to maintain accountability for ~~assets;~~ assets and to maintain material compliance with the books and records requirements under the 1940 Act and the 1940 Act Rules and (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded ~~accountability~~ account for assets is compared with existing assets ~~through an asset reconciliation procedure or otherwise~~ at reasonable intervals and appropriate action is taken with respect to any differences. (nq) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into The conduct by the Fund ~~other than those~~ of its business (as described in the ~~ordinary course~~ Prospectus) does not require it to be the owner, possessor or licensee of ~~its business~~any patents, patent licenses, trademarks, service marks or trade names which it does not own, possess or license. (or) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result Except as stated in ~~any material adverse change~~ this Agreement and in the ~~condition, financial~~ Prospectus (and any amendment or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits tosupplement thereto), the ~~Registration Statement that have not been described or filed as required. (p) The~~ Fund has not taken and will not take, directly or indirectly, any action designed to or which ~~might~~ should reasonably be ~~reasonably~~ expected to cause or result ~~in,~~ in or which will ~~constitute, (i)~~ constitute stabilization or manipulation of the price of the Common Shares in violation of ~~applicable~~ federal securities laws and the Fund is not aware of any such action taken or ~~(ii) except for stabilization transactions conducted~~ to be taken by ~~underwriters in connection with other offerings~~ any affiliates of the ~~Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the~~ Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To The Fund is duly registered under the ~~knowledge~~ 1940 Act as a closed-end, diversified management investment company and the 1940 Act Notification has been duly filed with the Commission and, at the time of filing thereof and at the time of filing any amendment or supplement thereto, conformed in all material respects with all applicable provisions of the 1940 Act and the 1940 Act Rules and Regulations. The Fund ~~after due inquiry~~has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement (or any amendment or supplement to either of them). (t) All advertising, ~~there are no Sales Materials;~~ sales literature or other promotional material (including "prospectus wrappers" and ~~no Road Show Materials~~ "broker kits"), whether in printed or electronic form, authorized in writing by or prepared by the Fund or ~~authorized or prepared on behalf of the Fund by~~ the Investment Adviser ~~or any representative thereof~~ for use in connection with the ~~public~~ offering or and sale of the ~~Common~~ Shares (collectively, "sales material") complied and comply in all material respects with the applicable requirements of the 1933 Act, the 1933 Act Rules and Regulations and the rules and interpretations of the NASD and if required to be filed with the NASD under the NASD's conduct rules were so filed. No sales material contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits 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. (tu) ~~Except as disclosed in the Registration Statement~~ This Agreement and ~~the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee~~ each of the Fund ~~is an “interested person” (as defined~~ Agreements complies in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Investment ~~Company~~ Advisers Act of 1940, as amended (the "Advisers Act") and the rules and regulations adopted by the Commission under the Advisers Act (the "Advisers Act Rules and Regulations"). (v) No holder of any security of the Fund has any right to require registration of Common Shares or ~~an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition,~~ any ~~certificate signed by any officer~~ other security of the Fund because of the filing of the registration statement or consummation of the transactions contemplated by this Agreement. (w) The Shares have been duly approved for listing upon notice of issuance on the NYSE and ~~delivered~~ the Fund's registration statement on Form 8-A, under the 1934 Act, has become effective. (x) The Fund intends to direct the ~~Sales Manager or its counsel in connection with~~ investment of the proceeds of the offering of the ~~Common~~ Shares ~~shall be deemed to be~~ in such a ~~representation and warranty by the Fund,~~ manner as to ~~matters covered thereby, to~~ comply with the ~~Sales Manager~~requirements of Subchapter M of the Code.

Appears in 1 contract

Samples: Underwriting Agreement (Calamos Convertible & High Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading; . Except as permitted under Rule 430 under the Securities Act (~~B) at no time during~~ and other applicable rules under Regulation C under the ~~period that begins~~ Securities Act), the Preliminary Prospectus dated [______], 2006 did not, as of ~~the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an~~ such date, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C) at no time during~~ . At the ~~period that begins~~ Effective Date and, if applicable, the date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and at the ~~time each of~~ Closing Dates, the ~~Sales Materials was first used in connection with~~ Prospectus did not or will not, as the ~~public offering of the Common Shares and ends at the final Settlement Date did~~ case may be, contain any ~~of the Sales Materials in use at the applicable time include an~~ untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; and (D~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of the ~~state~~ Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-~~Administration ~~Agreement~~ Agreement, and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the American~~ New York Stock ~~Exchange)~~ Exchange and the ~~Notification~~ Fund's Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"), has become effective. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ auditors with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares other than the definitive client brochure and the broker selling memo which were filed with the NASD on [______], 2006, a draft prospecting letter which was filed with the NASD on [______], 2006, a draft of a prospecting letter made available on a password-protected Internet web site maintained by the Investment Adviser and a road show tape made available for broker use on an Intranet web site maintained by the Investment Adviser (collectively, the "sales materials"); the sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the ~~Sales Manager~~ Underwriters or ~~its~~ counsel for the Underwriters in connection with the offering of the ~~Common Shares~~ Share shall be deemed to be a representation and warranty by the ~~Fund,~~ Fund as to matters covered thereby, to ~~the Sales Manager.~~each Underwriter

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager~~ each Underwriter as of the date of this ~~Sales Agreement~~ Agreement, as of the Firm Shares Closing Time and as of each ~~Settlement Date~~Additional Shares Closing Time, if any, as follows: (a) (i) ~~(A)~~ the Registration Statement has heretofore become effective under the Securities Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act, will be filed with the Commission and become effective under the Securities Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; ~~(B)~~ no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or ~~Sales~~ Rule 482 Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s 's knowledge, are contemplated by the Commission; ~~and (C)~~ the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; ~~(ii)~~ (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at the Firm Shares Closing Time, each ~~Settlement Date~~ Additional Shares Closing Time, if any, and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at the Firm Shares Closing Time, each ~~Settlement Date~~ Additional Shares Closing Time, if any, and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the ~~Common~~ Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. (~~“FINRA”~~the "NASD"); (~~iii) (~~A~~) (1~~) the Registration Statement as of the Effective Time did not, ~~(2)~~ as of the date hereof the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) ~~as of the date hereof~~ does not, and ~~(3)~~ as of the Firm Shares Closing Time and each Additional Shares Closing Time, if any, the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission~~), as of each Settlement Date,~~ ) will not, in each ~~case,~~ case contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) ~~at no time during the period that begins~~ as of the Applicable ~~Time and ends at the final Settlement Date did or will~~ Time, the Disclosure Package ~~in use at the applicable time~~ did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at on the time of each of the Sales Materials was first used in connection with the public offering of the ~~Common~~ Shares and ends at the ~~final Settlement Date~~ Applicable Time did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingMaterials; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the ~~final Settlement Date~~ Firm Shares Closing Time, the latest Additional Shares Closing Time, if any, and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that ~~each of~~ the Fund ~~and the Investment Adviser~~ makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning ~~the Sales Manager~~ an Underwriter and furnished in writing by or on behalf of such Underwriter through the ~~Sales Manager~~ Managing Representative to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of ~~the state~~ The Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-~~Administration ~~Agreement~~ Agreement, and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the American~~ New York Stock Exchange~~) and the Notification has become effective~~. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ auditors with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the ~~final Settlement Date~~later to occur of the (i) date of the last Closing Time and (b) completion of the distribution of the Shares, will not distribute any offering material in connection with the public offering or sale of the ~~Common~~ Shares other than the Registration Statement, the Disclosure Package, the Sales ~~Materials~~ materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales ~~Materials~~Materials other than [the definitive client brochure and the broker selling memo which were filed with the NASD on [______], 2006, a draft prospecting letter which was filed with the NASD on [______], 2006, a draft of a prospecting letter made available on a password-protected Internet web site maintained by the Investment Adviser]; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to ~~any~~ either of them), to the Fund’s 's knowledge, after due inquiry, no trustee of the Fund is an “"interested person” " (as defined in the ~~Investment Company Act~~0000 Xxx) of the Fund or an “"affiliated person” " (as defined in the ~~Investment Company Act~~0000 Xxx) of ~~the Sales Manager~~any Underwriter listed in Schedule I hereto. In addition, any certificate signed by any officer of the Fund and delivered to the ~~Sales Manager~~ Underwriters or ~~its~~ counsel for the Underwriters in connection with the offering of the ~~Common Shares~~ Share shall be deemed to be a representation and warranty by the ~~Fund,~~ Fund as to matters covered thereby, to ~~the Sales Manager.~~each Underwriter

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of the ~~state~~ Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement, the DTC Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust of the Fund, as amended through the date hereof, or the Amended and Restated By-laws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (Bthe "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ American Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are ~~duly authorized for listing, subject to official notice of issuance,~~ listed on ~~the NYSE Amex (which acquired~~ the American Stock Exchange~~) and the Notification has become effective~~. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The ~~Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in~~Shares have been, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant prior to the ~~Fund’s Dividend Reinvestment Plan effected following the date on which the distribution~~ Closing Date will be, assigned a rating of ~~the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization~~"AAA" by Standard & Poor's. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares (collectively, the "sales materials"); any sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the National Association of Securities Dealers, Inc.; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Limited Duration Income Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Delaware business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adverse Effect (~~iii~~as defined below in Section 3(m)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adverse Effect (~~iv) the~~ as defined below in Section 3(m)). The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-~~Administration Agreement, the Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the [Amended and Restated] Bylaws of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Amended Bylaws") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect (as defined below in Section 3(m)). (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers Ernst & Young LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (rp) The ~~Fund has not distributed and~~Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the ~~final Settlement Date~~Closing Date will be, ~~will not distribute~~ assigned a rating of "Aaa" by Xxxxx'x Investors Service, Inc. (r) No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (Pioneer Municipal High Income Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post- effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post- effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Date, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date ~~hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act~~ that any post- effective amendment to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (~~including~~ except any ~~post-~~post- effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission) as~~ date on which the distribution of the ~~date hereof does not~~Shares is completed) became or becomes effective, ~~and (3)~~ neither the Registration Statement ~~(including~~ nor any ~~post-effective~~ such amendment ~~thereto declared~~ did or ~~deemed to be effective by the Commission), as of each Settlement Date,~~ will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading; . Except as permitted under Rule 430 under the Securities Act (~~B) at no time during~~ and other applicable rules under Regulation C under the ~~period that begins~~ Securities Act), the Preliminary Prospectus dated March __, 2006 did not, as of ~~the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an~~ such date, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C) at no time during~~ . At the ~~period that begins~~ Effective Date and, if applicable, the date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and at the ~~time each of~~ Closing Date, the ~~Sales Materials was first used in connection with~~ Prospectus did not or will not, as the ~~public offering of the Common Shares and ends at the final Settlement Date did~~ case may be, contain any ~~of the Sales Materials in use at the applicable time include an~~ untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; and (D~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust~~ corporation under the laws of the state of ~~Delaware~~Maryland, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except where the failure to obtain such licenses, permits, consents, orders, approvals and ~~(iv)~~ other authorizations, either alone or in the aggregate, would not reasonably be expected to have a material adverse effect. The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The ~~Common~~ Fund's currently outstanding RPS conform in all material respects to the description of them in the Prospectus. All the outstanding RPS have been duly authorized and are validly issued, fully paid and nonassessable. The Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the ~~Transfer~~ Administration Agreement, the Service Agreement, the Remarketing Agreement, the Auction Agency Agreement, the ~~Sub-Administration~~ DTC Agreement, the CP Notes Agreements, the Backup Credit Facility Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (Ax) the ~~Declaration~~ Articles of ~~Trust~~ Incorporation, RPS Articles Supplementary or ~~the By-laws~~ bylaws of the Fund, each as amended through the date hereof, (By) the APS Articles Supplementary and the Rating Agency Guidelines, each as amended through the date hereof, or (z) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than (a) state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales Agreement~~Underwriting Agreement or (b) in the case of clause (z), that would not reasonably be expected to have a material adverse effect on the Fund. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or ~~affected~~affected except for any breach or default that would not reasonably be expected to have a material adverse affect on the Fund. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are ~~duly authorized for listing, subject to official notice of issuance,~~ listed on the ~~NYSE Amex (which acquired the American~~ New York Stock Exchange~~) and the Notification has become effective~~. (k) ~~PricewaterhouseCoopers~~ Ernst & Young LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, is are an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the ~~condition,~~ condition (financial or otherwise), ~~business~~ business, prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The ~~Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in~~Shares have been, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant prior to the ~~Fund’s Dividend Reinvestment Plan effected following the date on which the distribution~~ Closing Date will be, assigned a rating of ~~the Common Shares is completed in accordance with the policies~~ "AAA" by Standard & Poor's Ratings Services, a division of ~~the Fund as set forth in the Prospectus~~The XxXxxx-Xxxx Companies, ~~stabilization~~Inc. ("S&P") and "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's"). (q) The issuance of the Shares shall not result in a suspension, qualification, withdrawal or downgrade of any of the ratings assigned by Moody's and S&P to the outstanding RPS of the Fund. (r) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund and the Investment Adviser after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares (collectively, the "sales materials"); any sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the National Association of Securities Dealers, Inc.; and ~~no Road Show Materials~~ neither the sales materials nor the road show slides authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) ~~Except~~ The Fund has elected to be treated, and has qualified, as ~~disclosed in~~ a regulated investment company within the ~~Registration Statement and~~ meaning of Section 851 of the ~~Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee~~ Code for each taxable year of the Fund ~~is an “interested person” (as defined in~~ beginning on or prior to the ~~Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager~~Closing Date. In addition, any certificate signed by any officer of the Fund and delivered to the ~~Sales Manager~~ Underwriters or ~~its~~ counsel for the Underwriters in connection with the offering of the ~~Common~~ Shares shall be deemed to be a representation and warranty by the ~~Fund,~~ Fund as to matters covered thereby, to ~~the Sales Manager~~each Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (DNP Select Income Fund Inc)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a Delaware statutory ~~trust under the laws of the state of Delaware~~trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adverse Effect (~~iii~~as defined below in Section 3(m)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adverse Effect (~~iv) the~~ as defined below in Section 3(m)). The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The common shares of beneficial interest of the Fund (the "Common Shares") and the Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement and the ~~Dividend Reinvestment Plan~~ DTC Agreement (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof (Bthe "Declaration of Trust"), the By-laws, the Statement of Preferences of Auction Preferred Shares of the Fund, adopted in connection with the issuance of the Shares and as amended through the date hereof (the "Statement") or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect (as defined below in Section 3(m)). (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required ~~by the NYSE Amex or~~ under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers Ernst & Young LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (lk) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (ml) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (nm) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (on) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (qo) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (p) The Common Shares are listed on the New York Stock Exchange. (q) The Shares have been, or prior to the Closing Date will be, assigned a rating of "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's") and "AAA" by Fitch, Inc. ("Fitch"). (r) ~~The~~ No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund ~~has not distributed and, prior to~~ or the ~~final Settlement Date, will not distribute~~ Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares ~~other than~~ (collectively referred to as the ~~Registration Statement,~~ "sales materials"); any road show slides or road show tapes complied and comply in all material respects with the ~~Disclosure Package,~~ applicable requirements of the ~~Sales Materials~~ Act and the ~~Prospectus. (s) To the knowledge~~ rules and interpretations of the ~~Fund after due inquiry, there are no Sales Materials~~NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (Pioneer Municipal High Income Advantage Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) On (i) the Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (Ah) ~~the Registration Statement has heretofore become effective~~ or (j) under the Securities Act; , as the case may be, (Bii) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (Ciii) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement~~ Statement, the Prospectus and any such amendment or supplement thereto and the Notification complied ~~at the Effective Time, complies as of the date hereof and, as amended~~ or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material ~~respects,~~ respects with the requirements of the Securities Act and the Investment Company Act~~; (B) each Preliminary Prospectus~~ , as the case may be. On the Effective Date and ~~the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of~~ on the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by the Underwriters expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of the ~~state~~ Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund~~; (iii)~~ , and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus~~; and (iv) the~~ . The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-~~Administration ~~Agreement~~ Agreement, and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the American~~ New York Stock ~~Exchange)~~ Exchange and the ~~Notification~~ Fund's Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"), has become effective. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touch LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ auditors with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Underwriters, and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, ~~there are~~ no ~~Sales Materials~~advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund or the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Shares other than the definitive client brochure and the broker selling memo which were filed with the NASD on [ ], 2003, a draft prospecting letter which was filed with the NASD on [ ], 2003, a draft of a prospecting letter made available on an Intranet web site maintained by the Investment Adviser and a road show tape made available for broker use on an Intranet web site maintained by the Investment Adviser (collectively, the "sales materials"); the sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the Securities Act and the rules and interpretations of the NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Senior Floating Rate Trust)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager as of the date of this Sales Agreement and as of~~ each ~~Settlement Date,~~ Underwriter as follows: (a) ~~(i)~~ On (A) the ~~Registration Statement has heretofore become effective~~ Effective Date and the date on which the Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the ~~Securities~~ Act; , as the case may be, (B) ~~no stop order of~~ the ~~Commission preventing or suspending the use of~~ date on which any ~~Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of~~ post-effective amendment to the Registration Statement ~~has been issued, and no proceedings for such purpose have been instituted or,~~ (except any post-effective amendment which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective or any amendment or supplement to the ~~Fund’s knowledge, are contemplated by~~ Prospectus was or is filed with the ~~Commission;~~ Commission and (C) the ~~Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (ii) (A)~~ Closing Dates, the Registration ~~Statement complied at~~ Statement, the ~~Effective Time, complies as of the date hereof and, as amended~~ Prospectus and any such amendment or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act supplement thereto and the ~~Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended~~ Notification complied or ~~supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares,~~ will ~~comply,~~ comply in all material respects with the requirements of the ~~Securities~~ Act ~~(including, without limitation, Section 10(a) of the Securities Act)~~ and the Investment Company Act; , as the case may be. On the Effective Date and ~~(C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of~~ on the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including that any post-effective amendment ~~thereto declared or deemed~~ to ~~be effective by the Commission) as of the date hereof does not, and (3)~~ the Registration Statement (~~including~~ except any post-effective amendment ~~thereto declared~~ which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or ~~deemed to be effective by~~ (y) the ~~Commission)~~date on which the distribution of the Shares is completed) became or becomes effective, ~~as of each Settlement Date,~~ neither the Registration Statement nor any such amendment did or will ~~not, in each case,~~ contain an any untrue statement of a material fact or omit to state a material fact required to be stated ~~therein~~ in it or necessary to make the statements ~~therein~~ in it not misleading~~; (B) at no time during~~ . At the ~~period that begins as of~~ Effective Date and, if applicable, the ~~Applicable Time~~ date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and ~~ends~~ at the ~~final Settlement Date~~ Closing Dates, the Prospectus did not or will not, as the ~~Disclosure Package in use at the applicable time include an~~ case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary ~~in order~~ to make the statements ~~therein~~in it, in ~~the~~ light of the circumstances under which they were made, not misleading~~; (C~~. The foregoing representations in this Section 3(a) ~~at no time during~~ do not apply to statements or omissions relating to the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus Underwriters made in reliance ~~upon~~ on and in conformity with information ~~concerning the Sales Manager and~~ furnished in writing ~~by or on behalf of the Sales Manager~~ to the Fund by you expressly for use in the Registration Statement, the ~~Disclosure Package~~ Prospectus, or ~~the Prospectus~~ any amendments or supplements thereto, as described in Section 9(f) hereof;. (ib) The Fund has been duly formed, is validly existing as a ~~statutory trust under the laws of the state of Delaware~~Massachusetts business trust, with full power and authority ~~to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and~~ to conduct its business as described in the Registration Statement and ~~the~~ Prospectus~~; (ii)~~ , and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so ~~qualified~~ licensed and qualified, either alone or be in ~~good standing~~ the aggregate, would not ~~have~~ result in a ~~material adverse effect on the Fund;~~ Material Adviser Effect (~~iii~~as defined below in Section 3(n)) and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; , except such licenses, permits, consents, orders, approvals and ~~(iv)~~ other authorizations of the Fund to obtain, either alone or in the aggregate, would not result in a Material Adviser Effect. The Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform ~~in all material respects~~ to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid ~~and~~ and, except to the extent set forth in the Prospectus, nonassessable. No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of ~~any supplemental registration statements, amendments~~ a final amendment to the Registration ~~Statement~~ Statement, or ~~such registration statements~~ any required filing under Rule 430A or Rule 497 under the ~~Prospectus~~Securities Act (the "Final Amendment"), if not already filed, all action under the ~~Securities~~ Act and the Investment Company Act, as the case may be, necessary under the federal securities laws on the part of the Fund to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the ~~Custodian~~ Custody Agreement, the Transfer Agency ~~Agreement, the Sub-Administration~~ Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust or the By-laws of the ~~Fund, (B)~~ Fund or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except for such breaches or defaults that do not, either alone or in the aggregate, have a Material Adverse Effect. (h) No person has any right to the registration of any securities of the Fund because of the filing of the ~~registration statement~~Registration Statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Fund prior to the Closing Date for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the ~~Securities~~ Act, the Investment Company ~~Act,~~ Act or the Advisers Act, and (ii) may be required by the ~~NYSE Amex~~ New York Stock Exchange or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The ~~Common~~ Shares are duly authorized for listing, subject to official notice of issuance, on the ~~NYSE Amex (which acquired the American~~ New York Stock ~~Exchange)~~ Exchange and the ~~Notification~~ Fund's Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (the "Exchange Act"), has become effective. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, ~~is an~~ are independent ~~registered~~ public ~~accounting firm~~ accountants with respect to the Fund as required by the ~~Securities~~ Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included ~~or incorporated by reference~~ in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business ~~prospects, properties, net assets~~ affairs or ~~results of operations~~ business of the Fund, whether or not arising in the ordinary course of business ~~and~~ (a "Material Adverse Effect"), (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) ~~The~~ Except for stabilization transactions conducted by the Managing Representative, and except for tender offers, Share repurchases and the issuance or purchase of Common Shares pursuant to the Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, ~~(i)~~ stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilizationlaws. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) ~~The~~ No advertising, sales literature or other promotional materials (excluding road show slides or road show tapes) were authorized or prepared by or on behalf of the Fund ~~has not distributed and, prior to~~ or the ~~final Settlement Date, will not distribute~~ Investment Adviser or any ~~offering material~~ representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares other than the ~~Registration Statement, the Disclosure Package, the Sales Materials~~ definitive client brochure and the ~~Prospectus.~~ broker selling memo which were filed with the National Association of Securities Dealers, Inc. (sthe "NASD") To on July 17, 2002 (collectively referred to as the ~~knowledge~~ "sales materials"); the sales materials and any road show slides or road show tapes complied and comply in all material respects with the applicable requirements of the ~~Fund after due inquiry, there are no Sales Materials~~Act and the rules and interpretations of the NASD; and no ~~Road Show Materials~~ broker kits, road show slides, road show tapes or sales materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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,~~ therein not misleading. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Underwriting Agreement (John Hancock Preferred Equity)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to ~~the Sales Manager~~ each Underwriter as of the date of this ~~Sales~~ Agreement and as of ~~each Settlement Date~~the Closing Time, as ~~follows~~following: (a) (~~i) (A~~i)(A) the Registration Statement has heretofore become effective under the Securities Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act, will be filed with the Commission and become effective under the Securities Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s 's knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; (~~ii) (~~A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at ~~each Settlement Date~~ the Closing Time, and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at ~~each Settlement Date~~ the Closing Time, and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the ~~Common~~ Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. (~~“FINRA”~~the "NASD"); (iii) (A~~) (1~~) the Registration Statement as of the Effective Time did not, ~~(2)~~ the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and ~~(3)~~ the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), ) as of ~~each Settlement Date,~~ the Closing Time will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the ~~final Settlement Date~~ Closing Time did or will the Disclosure Package ~~in use at the applicable time~~ include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the ~~Common~~ Shares and ends at the ~~final Settlement Date~~ Applicable Time did any of the Sales Materials ~~in use at the applicable time~~ include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the ~~final Settlement Date~~ Closing Time and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of ~~Common~~ Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that ~~each of~~ the Fund ~~and the Investment Adviser~~ makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning ~~the Sales Manager~~ an Underwriter and furnished in writing by or on behalf of such Underwriter through the ~~Sales Manager~~ Managing Representative to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof;. (i) The Fund has been duly formed, is validly existing as a ~~statutory~~ business trust under the laws of ~~the state~~ The Commonwealth of ~~Delaware~~Massachusetts, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Pricing Prospectus and the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus. The Common Shares conform in all material respects to the description of them in the Pricing Prospectus and the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). The ~~Common~~ Shares to be issued and ~~sold~~ delivered to and paid for by the Underwriters in accordance with this ~~Sales~~ Underwriting Agreement against payment therefor as provided by this ~~Sales~~ Underwriting Agreement have been duly authorized and when issued and delivered to the Underwriters will have been validly issued and will be fully paid and ~~nonassessable~~nonassessable (except as described in the Registration Statement). No person is entitled to any preemptive or other similar rights with respect to the ~~Common~~ Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a ~~non-~~diversified, closed-end management investment company, and, subject to the filing of any ~~supplemental registration statements, amendments~~ final amendment to the Registration Statement ~~or such registration statements or the Prospectus~~(a "Final Amendment"), if not already filed, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the ~~Common~~ Shares as provided in this ~~Sales~~ Underwriting Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this ~~Sales~~ Underwriting Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the ~~Sub-Administration~~ Auction Agency Agreement, the DTC Agreement and the Dividend Reinvestment Plan (collectively, the “"Fund Agreements”") and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “"Advisers Act”"), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the ~~Common~~ Shares as contemplated by this ~~Sales~~ Underwriting Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, ~~(A)~~ the Declaration of Trust ~~or the By-laws~~ of the Fund, as amended through the date hereof, or the Amended Bylaws (Bincluding the Rating Agency Guidelines) or any agreement or instrument to which the Fund is a party or by which the Fund is bound, or ~~(C)~~ any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “"blue sky” " laws applicable in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE ~~Amex~~ or under state securities or “"blue sky” " laws, in connection with the purchase and distribution of the ~~Common~~ Shares by the ~~Sales Manager~~ Underwriters pursuant to this ~~Sales~~ Underwriting Agreement. (j) The Common Shares are ~~duly authorized for listing, subject to official notice of issuance,~~ listed on the ~~NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective~~NYSE. (k) ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP, whose report ~~is incorporated by reference~~ appears in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The ~~statements~~ statement of assets and ~~liabilities, (operations and changes in net assets (including the notes thereto)~~ liabilities included or incorporated by reference in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund ~~maintains~~ will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s 's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of ~~business and~~ business, (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its ~~business~~business and (iii) there has been no dividend or distribution of any kind declared, paid or made on any class of its capital shares. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration ~~Statement~~ Statement, the Pricing Prospectus or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The ~~Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in~~Shares have been, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant prior to the ~~Fund’s Dividend Reinvestment Plan effected following the date on which the distribution~~ Closing Time will be, assigned a rating of ~~the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization~~"AA" by Fitch and "Aa" by Xxxxx'x. (q) The Fund intends to direct the investment of the proceeds of the offering of the ~~Common~~ Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “"Code”"). (r) The Fund has not distributed and, prior to the ~~final Settlement Date~~later to occur of the (i) Closing Time and (b) completion of the distribution of the Shares, will not distribute any offering material in connection with the public offering or sale of the ~~Common~~ Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales ~~Materials;~~ Materials and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the ~~Common~~ Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration ~~Statement~~ Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement to ~~any~~ either of them), to the Fund’s 's knowledge, after due inquiry, no trustee of the Fund is an “"interested person” " (as defined in the Investment Company Act) of the Fund or an “"affiliated person” " (as defined in the Investment Company Act) of ~~the Sales Manager~~any Underwriter listed in Schedule I hereto. In addition, any certificate signed by any officer of the Fund and delivered to the ~~Sales Manager~~ Underwriters or ~~its~~ counsel for the Underwriters in connection with the offering of the ~~Common~~ Shares shall be deemed to be a representation and warranty by the ~~Fund,~~ Fund as to matters covered thereby, to ~~the Sales Manager~~each Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)

Representations and Warranties of the Fund and the Investment Adviser. Each of the Fund and the Investment Adviser jointly and severally represents and warrants to the Sales Manager as of the date of this Sales Agreement and as of each Settlement Date, as follows: (a) (i) (A) the Registration Statement has heretofore become effective under the Securities Act; (B) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Sales Materials or of the Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s knowledge, are contemplated by the Commission; and (C) the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; ~~(ii)~~ (A) the Registration Statement complied at the Effective Time, complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects, with the requirements of the Securities Act and the Investment Company Act; (B) each Preliminary Prospectus and the Prospectus complied, at the time it was filed with the Commission, and the Prospectus complies as of the date hereof and, as amended or supplemented, at each Settlement Date and at all times during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares, will comply, in all material respects with the requirements of the Securities Act (including, without limitation, Section 10(a) of the Securities Act) and the Investment Company Act; and (C) each of the Sales Materials complied, at the time it was first used in connection with the public offering of the Common Shares, and complies as of the date hereof, in all material respects with the requirements of the Securities Act (including, without limitation, Rule 482 thereunder), the Investment Company Act and the applicable rules and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”); (iii) (A) (1) the Registration Statement as of the Effective Time did not, (2) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission) as of the date hereof does not, and (3) the Registration Statement (including any post-effective amendment thereto declared or deemed to be effective by the Commission), as of each Settlement Date, will not, in each case, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at no time during the period that begins as of the Applicable Time and ends at the final Settlement Date did or will the Disclosure Package in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (C) at no time during the period that begins at the time each of the Sales Materials was first used in connection with the public offering of the Common Shares and ends at the final Settlement Date did any of the Sales Materials in use at the applicable time include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (D) at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the latest of the final Settlement Date and the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale of Common Shares did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that each of the Fund and the Investment Adviser makes no representation or warranty with respect to any statement contained in the Registration Statement, the Disclosure Package or the Prospectus in reliance upon and in conformity with information concerning the Sales Manager and furnished in writing by or on behalf of the Sales Manager to the Fund expressly for use in the Registration Statement, the Disclosure Package or the Prospectus as described in Section 9(f) hereof; (i) The Fund has been duly formed, is validly existing as a statutory trust under the laws of the state of Delaware, with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus; (ii) the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the Fund; (iii) the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus; and (iv) the Fund has no subsidiaries. (c) The capitalization of the Fund is as set forth in the Registration Statement and the Prospectus. The Common Shares conform in all material respects to the description of them in the Prospectus. All the outstanding Common Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Common Shares to be issued and sold in accordance with this Sales Agreement against payment therefor as provided by this Sales Agreement have been duly authorized and when issued and delivered will have been validly issued and will be fully paid and nonassessable. No person is entitled to any preemptive or other similar rights with respect to the Common Shares. (d) The Fund is duly registered with the Commission under the Investment Company Act as a non-diversified, closed-end management investment company, and, subject to the filing of any supplemental registration statements, amendments to the Registration Statement or such registration statements or the Prospectus, all action under the Securities Act and the Investment Company Act, as the case may be, necessary to make the public offering and consummate the sale of the Common Shares as provided in this Sales Agreement has or will have been taken by the Fund. (e) The Fund has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement, the Sub-Administration Agreement and the Dividend Reinvestment Plan (collectively, the “Fund Agreements”) and to perform all of the terms and provisions hereof and thereof to be carried out by it and (i) each Fund Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund, (ii) each Fund Agreement does not violate any of the applicable provisions of the Investment Company Act or the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “Advisers Act”), as the case may be, and (iii) assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund enforceable in accordance with its terms, (A) subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (B) except as rights to indemnity thereunder may be limited by federal or state securities laws. (f) None of (i) the execution and delivery by the Fund of the Fund Agreements, (ii) the issue and sale by the Fund of the Common Shares as contemplated by this Sales Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (A) the Declaration of Trust or the By-laws of the Fund, (B) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (C) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund, other than state securities or “blue sky” laws applicable in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (g) The Fund is not currently in breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected. (h) No person has any right to the registration of any securities of the Fund because of the filing of the registration statement. (i) No consent, approval, authorization or order of any court or governmental agency or body or securities exchange or association, whether foreign or domestic, is required by the Fund for the consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Fund Agreements, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) may be required by the NYSE Amex or under state securities or “blue sky” laws, in connection with the distribution of the Common Shares by the Sales Manager pursuant to this Sales Agreement. (j) The Common Shares are duly authorized for listing, subject to official notice of issuance, on the NYSE Amex (which acquired the American Stock Exchange) and the Notification has become effective. (k) PricewaterhouseCoopers LLP, whose report is incorporated by reference in the Prospectus, is an independent registered public accounting firm with respect to the Fund as required by the Securities Act and the Investment Company Act. (l) The statements of assets and liabilities, (operations and changes in net assets (including the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus presents fairly in all material respects, in accordance with generally accepted accounting principles in the United States applied on a consistent basis, the financial position of the Fund as of the date indicated. (m) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets through an asset reconciliation procedure or otherwise at reasonable intervals and appropriate action is taken with respect to any differences. (n) Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, business prospects, properties, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Fund other than those in the ordinary course of its business. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending, or, to the knowledge of the Fund, threatened against or affecting the Fund, which (i) might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Fund or might materially adversely affect the properties or assets of the Fund or (ii) is of a character required to be described in the Registration Statement or the Prospectus; and there are no contracts, franchises or other documents that are of a character required to be described in, or that are required to be filed as exhibits to, the Registration Statement that have not been described or filed as required. (p) The Fund has not taken and will not take, directly or indirectly, any action designed or which might be reasonably expected to cause or result in, or which will constitute, (i) manipulation of the price of the Common Shares in violation of applicable federal securities laws or (ii) except for stabilization transactions conducted by underwriters in connection with other offerings of the Common Shares and except for tender offers, Common Share repurchases and the issuance or purchase of Common Shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Common Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization. (q) The Fund intends to direct the investment of the proceeds of the offering of the Common Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”). (r) The Fund has not distributed and, prior to the final Settlement Date, will not distribute any offering material in connection with the public offering or sale of the Common Shares other than the Registration Statement, the Disclosure Package, the Sales Materials and the Prospectus. (s) To the knowledge of the Fund after due inquiry, there are no Sales Materials; and no Road Show Materials authorized or prepared by the Fund or authorized or prepared on behalf of the Fund by the Investment Adviser or any representative thereof for use in connection with the public offering or sale of the Common Shares contained or contains any untrue statement of a material fact or omitted or omits 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. (t) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to any of them), to the Fund’s knowledge, after due inquiry, no trustee of the Fund is an “interested person” (as defined in the Investment Company Act) of the Fund or an “affiliated person” (as defined in the Investment Company Act) of the Sales Manager. In addition, any certificate signed by any officer of the Fund and delivered to the Sales Manager or its counsel in connection with the offering of the Common Shares shall be deemed to be a representation and warranty by the Fund, as to matters covered thereby, to the Sales Manager.

Appears in 1 contract

Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust)

Common use of Representations and Warranties of the Fund and the Investment Adviser Clause in Contracts