Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows: (a) The Investment Adviser has been duly formed and is validly existing in good standing under the laws of the State of California with the power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries. (b) The Investment Adviser is registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission. (c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder. (d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu. (e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement. (f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described. (g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect. (h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party. (i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect. (j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares. (k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened. (l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. (m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. (n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 4 contracts
Samples: Atm Sales Agreement (Flaherty & Crumrine Preferred & Income Fund Inc), Atm Sales Agreement (Flaherty & Crumrine PREFERRED & INCOME SECURITIES FUND INC), Atm Sales Agreement (Flaherty & Crumrine Dynamic Preferred & Income Fund Inc)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Sales Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time this Sales Agreement and as of each Settlement Date (as defined below) Date, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California New York, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement and the Sub-Administration Agreement (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (A) the Limited Liability Company Operating Agreement or Articles of Organization of the Investment Adviser, (B) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except or any law, rule or regulation, or (aC) as rights any order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE American or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or “blue sky” laws, in connection with the offer or sale distribution of the Common Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Sales Manager pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Sales Agreement.
(f) There are The description the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The or that might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations or the ability of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, the Investment Adviser to own and use fulfill its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an respective obligations under any Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or (i) manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws or resale (ii) except for stabilization activities conducted by underwriters in connection with other offerings of the SharesCommon 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.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgesuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu 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 Investment Adviser as to the matters covered therein thereby, to Virtuthe Sales Manager.
Appears in 3 contracts
Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing in good standing under the laws of the State of California Delaware with the power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating the partnership agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSENYSE American, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any directortrustee, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any directortrustee, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 3 contracts
Samples: Atm Sales Agreement (Clough Global Equity Fund), Atm Sales Agreement (Clough Global Dividend & Income Fund), Atm Sales Agreement (Clough Global Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Sales Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time this Sales Agreement and as of each Settlement Date (as defined below) Date, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California New York, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement and the Sub-Administration Agreement (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (A) the Limited Liability Company Operating Agreement or Articles of Organization of the Investment Adviser, (B) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except or any law, rule or regulation, or (aC) as rights any order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE Amex or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or “blue sky” laws, in connection with the offer or sale distribution of the Common Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Sales Manager pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Sales Agreement.
(f) There are The description the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The or that might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations or the ability of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, the Investment Adviser to own and use fulfill its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an respective obligations under any Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or (i) manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws or resale (ii) except for stabilization activities conducted by underwriters in connection with other offerings of the SharesCommon 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.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgesuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu 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 Investment Adviser as to the matters covered therein thereby, to Virtuthe 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 Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) you as follows:
(a) The Investment Adviser has been is a limited liability company duly formed and is validly existing in good standing under the laws of the State of California Delaware, with the full limited liability company power and authority to own own, lease and operate its property properties and to conduct its business as described in each of the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, (or any amendment or supplement to either of them) and is duly registered and qualified to transact conduct business and is in good standing in each jurisdiction in which or place where the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure so to be so qualified register or be in good standing to qualify would not be reasonably expected to have a material material, adverse effect affect on the condition, condition (financial or otherwiseother), general affairs, business, properties, net assets or on the prospects, earnings, business or results of operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesFund.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act, Act and is not prohibited by the Investment Advisers Act, the 1940 Act, the Investment Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser to under the Company Advisory Agreement or any Sub-Advisory Agreement as contemplated by the Investment Advisory Agreement, Registration Statement and or the Prospectus. There does not exist any proceeding which would reasonably be expected to have a material, and no order of suspension or revocation of such adverse affect on the registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by Adviser with the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse EffectAdviser, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and but are not so describeddescribed as required or that could reasonably be expected to result in any material, adverse change in the condition (financial or other), properties, net assets or results of operations of the Investment Adviser or that may have a material, adverse effect on the ability of the Investment Adviser to perform its obligations under this Agreement, the Advisory Agreement or any Sub-Advisory Agreement.
(gd) Neither the execution, delivery or performance of this Agreement, the Advisory Agreement or any Sub-Advisory Agreement by the Investment Adviser, nor the consummation by the Investment Adviser of the transactions contemplated hereby or thereby (i) requires the Investment Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Investment Adviser or conflicts or will conflict with or constitutes or will constitute a material breach of or a material default under the certificate of formation or other organizational documents of the Investment Adviser or (ii) (A) conflicts or will conflict in a material manner with or constitutes or will constitute a material breach of or a material default under, any material agreement, indenture, lease or other instrument to which the Investment Adviser is a party or by which the Investment Adviser or any of its properties may be bound, and which, as a result of such material conflict, material breach or material default, would reasonably be expected to have a material, adverse affect on the Investment Adviser's ability to perform its obligations under this Agreement, the Investment Advisory Agreement and any Sub-Advisory Agreement, or (B) materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Adviser 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 Investment Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject, and which, as a result of such conflict, material breach, material default or creation or imposition of any lien, charge or encumbrance, would reasonably be expected to materially and adversely affect the Investment Advisers ability to perform its obligations under this Agreement, the Investment Advisory Agreement and any Sub-Advisory Agreement. The Investment Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The Investment Adviser has all necessary consentsfull power and authority to enter into this Agreement, authorizationsthe Advisory Agreement and each Sub-Advisory Agreement, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications the execution and registrations of and fromdelivery of, and has made all declarations the performance by the Investment Adviser of its obligations under, this Agreement, the Advisory Agreement and filings witheach Sub-Advisory Agreement have been duly and validly authorized by the Investment Adviser and this Agreement, all governmental authoritiesthe Advisory Agreement and each Sub-Advisory Agreement have been duly executed and delivered by the Investment Adviser and constitute the valid and legally binding agreements of the Investment Adviser, self-regulatory organizations enforceable against the Investment Adviser in accordance with their terms, except as rights to indemnity and courts contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Investment Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other tribunals, laws relating to or affecting creditors' rights generally and by general equitable principles whether foreign enforcement is considered in a proceeding in equity or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectat law.
(hf) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement or the Prospectus or under this Agreement, the Advisory Agreement or any Sub-Advisory Agreement.
(g) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) complied and by this Agreement comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the Registration Statement or the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), general affairs, business or properties of the Investment Advisory Agreement Adviser and (ii) there have been no transactions entered into by the Investment Adviser which are material to which it is a partythe Investment Adviser other than those in the ordinary course of its business as described in the Prospectus.
(i) The Investment Advisory Agreement is Adviser has all such licenses, permits and authorizations of governmental or regulatory authorities ("Adviser permits") as are necessary to own its property and to conduct its business in full force the manner described in the Prospectus (and effect and any amendment or supplement thereto); the Investment Adviser is not in default thereunder, has fulfilled and performed all its material obligations with respect to such Adviser permits and no event has occurred which with the passage allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the giving rights of notice or both would constitute a default by the Investment Adviser under any such document, except to the extent that such default would not have an Adviser Material Adverse Effectpermit.
(j) None This Agreement, the Advisory Agreement and each Sub-Advisory Agreement each comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or the Prospectus, the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takennot taken and will not take, directly or indirectly, any action designed to or which constitutes or is designed might reasonably be expected to cause or result in, in or which could reasonably be expected to constitute, cause or result in, the will constitute stabilization or manipulation of the price of the Shares or of any security securities issued by the Fund to facilitate the sale or resale of the Shares.
(k) The operations , in each case, in violation of federal securities laws and the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit is not aware of any such action taken or proceeding to be taken by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge affiliates of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Distribution Agreement (Advantage Advisers Multi - Sector Fund I), Distribution Agreement (Advantage Advisers Multi - Sector Fund I)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Sales Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time this Sales Agreement and as of each Settlement Date (as defined below) Date, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California New York, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement and the Sub-Administration Agreement (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (A) the Limited Liability Company Operating Agreement or Articles of Organization of the Investment Adviser, (B) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except or any law, rule or regulation, or (aC) as rights any order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or “blue sky” laws, in connection with the offer or sale distribution of the Preferred Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Sales Manager pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Sales Agreement.
(f) There are The description the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The or that might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations or the ability of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, the Investment Adviser to own and use fulfill its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an respective obligations under any Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or (i) manipulation of the price of any security to facilitate the sale Preferred Shares in violation of applicable federal securities laws or resale (ii) except for stabilization activities conducted by underwriters in connection with other offerings of the SharesPreferred Shares and except for tender offers and Preferred Share repurchases effected following the date on which the distribution of the Preferred Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgesuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Sales Manager or its counsel in connection with the offering of the Preferred Shares shall be deemed to be a representation and warranty by the Investment Adviser as to the matters covered therein thereby, to Virtuthe Sales Manager.
Appears in 2 contracts
Samples: Sales Agreement (Gabelli Healthcare & WellnessRx Trust), Sales Agreement (Gabelli Healthcare & WellnessRx Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, and the Shareholder Servicing Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation New York Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The any Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(ki) The operations of In the event that the Fund or the Investment Adviser are makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding registered representatives thereof by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Eaton Vance Insured Florida Municipal Bond Fund), Underwriting Agreement (Eaton Vance Insured Massachusetts Municipal Bond Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into obligations under this Agreement and the Investment Advisory Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of perform its obligations under this Agreement and the Investment Adviser, whether or not arising from transactions in the ordinary course of business of Advisory Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement (an “Adviser Material Adverse Effect”). The and the Investment Adviser has no wholly owned subsidiariesAdvisory Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Investment Advisory Agreement (collectively, this Underwriting Agreement and the Investment Advisory Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources not made available to it necessary any promotional materials intended for the performance of its services use only by qualified broker-dealers and obligations as contemplated in the Registration Statement and the Prospectus and registered representatives thereof by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsimilar electronic means.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Underwriting Agreement (Hancock John Investors Trust), Underwriting Agreement (Hancock John Income Securities Trust /Ma)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each of the Underwriters as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State jurisdiction of California with its organization, has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Management Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory Agreement, Registration Statement and the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement and the Investment Management Agreement, has been duly authorized, executed and delivered by the Investment Adviser. This Adviser and each of this Agreement and the Investment Advisory Management Agreement to which the Investment Adviser is a party comply in complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of this Agreement and the Investment Management Agreement (assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser ) is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, under this Agreement does not conflict with or and the Investment Management Agreement will not conflict with, result in, or constitute a violation, breach of, or default under, contravene (x) operating the limited partnership agreement of the Investment Adviser Adviser, (y) any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser adviser that is material to the Investment Adviser Adviser, or (z) any law, rule or regulation law applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment AdviserInvestment, whether foreign or domestic, other than state securities or “blue sky” laws applicable in connection with the purchase and distribution of Shares by the Underwriters pursuant to this Agreement; except, with respect to clauses clause (yx) or (zy), any contravention which would not have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementInvestment Adviser; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtuany Underwriter.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or and the Investment Advisory Agreement to which it is a partyManagement Agreement, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky lawssky” laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would not have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementInvestment Adviser.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the Investment Adviser, or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents of the Investment Adviser that are required to be described in the Registration Statement or the Prospectus that are not described as required.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effecthave a material adverse effect on the Investment Adviser.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyManagement Agreement.
(i) The Investment Advisory Management Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment Adviser, any other party to the Investment Management Agreement is not in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of All information furnished by the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result infor use in the Registration Statement, the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Sale Prospectus and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPAProspectus, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None description of the Investment Adviser nor(the “Investment Adviser Information”) does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to its knowledgestate any material fact necessary to make such information not misleading (in the case of the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which such information is provided).
(k) There has not occurred any directormaterial adverse change, officeror any development involving a prospective material adverse change, agentin the condition, employee financial or affiliate otherwise, or in the earnings, business or operations of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC from that set forth in the Time of Sale Prospectus, and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) there have been no transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty entered into by the Investment Adviser as which are material to the matters covered therein to VirtuInvestment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Cushing MLP Total Return Fund), Underwriting Agreement (Cushing MLP Total Return Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing in good standing under the laws of the State of California Delaware with the power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating the limited liability company agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser and its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Atm Sales Agreement (Apollo Senior Floating Rate Fund Inc.), Atm Sales Agreement (Apollo Tactical Income Fund Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State The Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, and the Shareholder Servicing Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation New York Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The any Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has In the financial resources available to it necessary for event that the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and Fund or the Investment Adviser is not in default thereunder, makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and no event has occurred which with the passage of time or the giving of notice or both would constitute a default registered representatives thereof by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
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 Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Additional Compensation Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the condition, financial or otherwise, or on the prospects, earnings, business or operations of Shareholder Servicing Agreement the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ni) The Investment Adviser maintains a system has not made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general an Internet web site or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtusimilar electronic means.
Appears in 2 contracts
Samples: Underwriting Agreement (John Hancock Preferred Income Fund Ii), Underwriting Agreement (John Hancock Preferred Income Fund Iii)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Sales Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time this Sales Agreement and as of each Settlement Date (as defined below) Date, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California New York, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement and the Sub-Administration Agreement (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (A) the Limited Liability Company Operating Agreement or Articles of Organization of the Investment Adviser, (B) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except or any law, rule or regulation, or (aC) as rights any order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE MKT or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or “blue sky” laws, in connection with the offer or sale distribution of the Common Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Sales Manager pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Sales Agreement.
(f) There are The description the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The or that might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations or the ability of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, the Investment Adviser to own and use fulfill its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an respective obligations under any Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or (i) manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws or resale (ii) except for stabilization activities conducted by underwriters in connection with other offerings of the SharesCommon 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.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgesuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu 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 Investment Adviser as to the matters covered therein thereby, to Virtuthe 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 Investment Adviser. The Investment Adviser represents and represents, warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsthat:
(a) A. The Investment Adviser has been duly formed and is validly existing in good standing under authorized by the laws Trustees of the State of California with the power and authority Trust to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except delegate to the extent that Sub-Adviser the failure provision of investment services to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). each Fund as contemplated hereby.
B. The Investment Adviser has no wholly owned subsidiariesadopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide the Sub-Adviser with a copy of such code of ethics.
(b) C. The Investment Adviser (i) is registered with the Commission as an investment adviser under the Advisers ActAct and will continue to be so registered for so long as this Agreement remains in effect, and (ii) is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts1940 Act, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the or other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under regulation or order from performing the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions services contemplated by this Agreement; provided that no representation or warranty is made with respect , (iii) has met and will seek to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required continue to be obtained by the Investment Adviser meet for the performance by the Investment Adviser of its obligations under so long as this Agreement is in effect, any other applicable federal or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Actstate requirements, or the applicable Rules and Regulations, (ii) requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions services contemplated by this Agreement.
, (fiv) There are no legal or governmental proceedings pending orhas the full power and authority to enter into and perform the services contemplated by this Agreement, to and (v) will promptly notify the knowledge Sub-Adviser of the Investment Adviser, threatened to which occurrence of any event that would disqualify the Investment Adviser is a party or from serving as investment manager of an investment company pursuant to which any Section 9(a) of the properties 1940 Act or otherwise.
D. The Investment Adviser acknowledges receipt of Part 2A of the Sub-Adviser's Form ADV at least 48 hours prior to entering into this Agreement, as required by Rule 204-3 under the Advisers Act.
E. The Investment Adviser is subject shall provide (ior cause the Trust's custodian to provide) other than proceedings accurately described in all material respects timely information to the Sub-Adviser regarding such matters as the composition to assets in the Registration Statement portion of each Fund managed by the Sub-Adviser, cash requirements and cash available for investment in such portion of each such Fund, and all other information as may be reasonably necessary for the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Sub-Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so describedduties hereunder.
(g) F. The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which required to be registered with the passage CFTC as a futures commission merchant, introducing broker, commodity pool operator, commodity trading advisor or leverage transaction merchant, as such terms are defined in the by-laws and rules of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse EffectNFA.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) G. The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in not required to be registered as a violation by such persons member of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithNFA.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Interim Sub Advisory Agreement (Financial Investors Trust), Sub Advisory Agreement (Financial Investors Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Additional Compensation Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the condition, financial or otherwise, or on the prospects, earnings, business or operations of Shareholder Servicing Agreement the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources not made available to it necessary any promotional materials intended for the performance of its services use only by qualified broker-dealers and obligations as contemplated in the Registration Statement and the Prospectus and registered representatives thereof by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsimilar electronic means.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Underwriting Agreement (John Hancock Preferred Income Fund Ii), Underwriting Agreement (John Hancock Preferred Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Agreement, as the case may beAdditional Compensation Agreements, and the Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the conditionShareholder Servicing Agreement, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreements; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreements.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreements (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreements being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources not made available to it necessary any promotional materials intended for the performance of its services use only by qualified broker-dealers and obligations as contemplated in the Registration Statement and the Prospectus and registered representatives thereof by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsimilar electronic means.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 2 contracts
Samples: Underwriting Agreement (John Hancock Tax-Advantaged Dividend Income Fund), Underwriting Agreement (John Hancock Preferred Income Fund Iii)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Additional Compensation Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the condition, financial or otherwise, or on the prospects, earnings, business or operations of Shareholder Servicing Agreement the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Trust as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Except for stabilization activities 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 Trust as set forth in the Prospectus, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ni) The Investment Adviser maintains a system has not made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general an Internet web site or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtusimilar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Municipal High Income Advantage Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a limited liability company under the laws of the State of California with the Delaware; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and Prospectus; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which where its ownership or leasing property or the conduct of its business or its ownership or leasing of property other activity requires such qualification, except to the extent that where the failure to be so duly licensed, qualified or be to do business and in good standing would not be reasonably expected material to have a material adverse effect on the condition, Investment Adviser’s condition (financial or otherwise, or on the prospects), earnings, business affairs, business prospects, management, properties, net assets or operations results of operations, the Investment Adviser’s ability to manage this Fund or this offering; (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or not arising from transactions domestic, necessary to carry on its business as contemplated in the ordinary course of business of Registration Statement, the Pricing Prospectus and the Prospectus, except where the failure to own, possess, obtain or maintain such Licenses and Permits would not be material to the Investment Adviser Adviser’s condition (financial or otherwise), earnings, business affairs, business prospects, management, properties, net assets or results of operations, the Investment Adviser’s ability to manage this Fund or this offering; and (v) has made all necessary filings required under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesany applicable federal, state, local or foreign law, regulation or rule.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Fee Waiver Agreement, the Subscription Agreement and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and , (ii) the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements do not violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by U.S. bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (generally, whether statutory or decisional) , and by to general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (b) with respect except as enforcement of rights to termination under the Investment Company Act indemnity thereunder may be limited by federal or the reasonableness or fairness of compensation payable thereunderstate securities laws.
(d) The execution None of (i) the execution, delivery and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations underthe Adviser Agreements, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation issuance and sale by the Fund of the transactions Shares as contemplated by this Underwriting Agreement; provided that no representation , the Registration Statement, the Pricing Prospectus, the Prospectus or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
Adviser Agreements and (eiii) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement any of the Adviser Agreements or performance and consummation by the Investment Adviser of the other transactions contemplated by the Adviser Agreements (A) conflicts with or will conflict with, or results in or will result in a breach or violation of the limited liability company operating agreement of the Investment Adviser, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under the limited liability company operating agreement of the Investment Adviser, or the Investment Advisory Agreement terms and provisions of any agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which it the Investment Adviser is a partyparty or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject or (C) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Adviser or having jurisdiction over the Investment Adviser’s properties.
(e) No material consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Investment Adviser for the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Prospectus, except such as (i) have been obtained and such as may be required (and shall be obtained prior to commencement of the transaction contemplated by (ithis Underwriting Agreement) under the Acts, the Advisers Securities Act, the Exchange Act, the Investment Company Act or the applicable Rules Advisers Act, and Regulations, (ii) the rules and regulations of FINRA or of may be required by the NYSE, (iii) by the FINRA or under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no legal action, suit, claim, inquiry, investigation or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, whether foreign or domestic now pending or, to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is a party which (i) if determined adversely would result in any adverse change in the condition (financial or to which any otherwise), earnings, business affairs, business prospects, management, properties, net assets or results of the properties operations of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are is of a character required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectas required.
(h) The Except for stabilization transactions conducted by the Underwriters, and except for the issuance or purchase of 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 Pricing Prospectus or the Prospectus, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed or which constitutes or is designed might be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(i) In the event that the Fund or the Investment Adviser has made available any security Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to facilitate constitute a bona fide electronic road show, the sale Investment Adviser has installed and maintained pre-qualification and password-protection or resale similar procedures which are designed and reasonably expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(j) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the SharesAdvisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(k) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) The Investment Adviser or any other person associated with or acting on behalf of the Investment Adviser including, without limitation, any trustee, officer, agent, employee or affiliate of the Investment Adviser, has not, directly or indirectly, while acting on behalf of the Investment Adviser (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA; or (iv) made any other unlawful payment.
(m) The operations of the Investment Adviser and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(ln) None of Neither the Investment Adviser nornor any member, to its knowledgedirector, any directortrustee, officer, agent, employee employee, affiliate or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate person acting on behalf of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC OFAC; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as applicable, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Tortoise Energy Independence Fund, Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a business trust under the laws of the State Commonwealth of California with the Massachusetts; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and Prospectus; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or its ownership or leasing of property other activity requires such qualification; (iv) owns, except to the extent that the failure to be so qualified possesses or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviserhas obtained and currently maintains all Licenses and Permits, whether foreign or not arising from transactions domestic, necessary to carry on its business as contemplated in the ordinary course of business of Registration Statement, the Investment Adviser Pricing Prospectus and the Prospectus; and (v) has made all necessary filings required under any applicable federal, state, local or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesforeign law, regulation or rule.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Expense Agreement, the Subscription Agreement and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and , (ii) the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements do not violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by U.S. bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (generally, whether statutory or decisional) , and by to general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (b) with respect except as enforcement of rights to termination under the Investment Company Act indemnity thereunder may be limited by federal or the reasonableness or fairness of compensation payable thereunderstate securities laws.
(d) The execution None of (i) the execution, delivery and delivery performance by the Investment Adviser ofof the Adviser Agreements, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Underwriting Agreement, the Registration Statement, the Pricing Prospectus, the Prospectus or any of the Adviser Agreements and (iii) the performance by the Investment Adviser of its obligations under, this Agreement does not conflict under any of the Adviser Agreements or performance and consummation by the Investment Adviser of the other transactions contemplated by the Adviser Agreements (A) conflicts with or will not conflict with, or results in or will result inin a breach or violation of the declaration of trust, bylaws or constitute similar organizational documents of the Investment Adviser, (B) conflicts with or will conflict with, results in or will result in a violation, breach or violation of, or constitutes or will constitute a default or an event of default under, (x) operating agreement or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser (y) under the declaration of trust, bylaws or similar organizational documents of the Investment Adviser, or the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, bond, licenseinsurance or surety agreement, lease or other instrument or obligation binding upon to which the Investment Adviser that is material a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject (which conflict or breach, either individually or in the aggregate, would have a material adverse effect upon the Invesmtent Adviser) or (zC) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu’s properties.
(e) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit ofby, license fromany federal, state, local or qualification foreign court or registration governmental or regulatory agency, commission, board, authority or body or with any governmental body, agency or authority, self-regulatory organization organization, other non-governmental regulatory authority, securities exchange or court or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Time for the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of its obligations under this Agreement all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Investment Advisory Agreement to which it is a partyProspectus, except such as have been obtained and such as may be required (and shall be obtained prior to commencement of the transaction contemplated by (ithis Underwriting Agreement) under the Acts, the Advisers Securities Act, the Exchange Act, the Investment Company Act or the applicable Rules Advisers Act, and Regulations, (iiiii) the rules and regulations of FINRA or of may be required by the NYSE, (iii) by the FINRA or under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no legal action, threatened action, suit, claim, inquiry, investigation or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, whether foreign or domestic now pending or, to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is a party which (i) if determined adversely would result in any adverse change in the condition (financial or to which any otherwise), business, prospects, management, properties, net assets or results of the properties operations of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are is of a character required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectas required.
(h) The Except for stabilization transactions conducted by the Underwriters, and except for the issuance or purchase of 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 Pricing Prospectus or the Prospectus, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(i) In the event that the Fund or the Investment Adviser has made available any security Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to facilitate constitute a bona fide electronic road show, the sale Investment Adviser has installed and maintained pre-qualification and password-protection or resale similar procedures which are designed and reasonably expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(j) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the SharesAdvisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(k) The Investment Adviser maintains a system of internal controls sufficient to ensure that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) The Investment Adviser or any other person associated with or acting on behalf of the Investment Adviser including, without limitation, any trustee, officer, agent or employee of the Investment Adviser, has not, directly or indirectly, while acting on behalf of the Investment Adviser (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA; or (iv) made any other unlawful payment.
(m) The operations of the Investment Adviser and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, or threatened.
(ln) None of Neither the Investment Adviser nornor any member, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any directortrustee, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC OFAC; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Municipal Income Term Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and the Prospectus and enter into this Agreement and Shareholder Servicing Agreement, the Investment Advisory Agreement, as the case may beAdministration Agreement, and the Additional Compensation Agreement, and the Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the conditionShareholder Servicing Agreement, financial or otherwisethe Administration Agreement, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement (an “Adviser Material Adverse Effect”). The Agreement, the Shareholder Servicing Agreement, the Investment Adviser has no wholly owned subsidiariesAdvisory Agreement, the Administration Agreement, and the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement, the Administration Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement, the Administration Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources not made available to it necessary any promotional materials intended for the performance of its services use only by qualified broker-dealers and obligations as contemplated in the Registration Statement and the Prospectus and registered representatives thereof by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsimilar electronic means.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Municipal High Income Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Illinois with the full power and authority to own perform its property obligations under the Investment Adviser Agreements (as defined below) and to conduct its business as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which it is required to be so qualified in order to perform its obligations under the conduct of its business or its ownership or leasing of property requires such qualificationInvestment Adviser Agreements (as defined below) and as described in the Registration Statement, the Pricing Prospectus and the Prospectus, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of 's ability to perform its obligations under the Investment Adviser or under this Agreement Agreements (an “Adviser Material Adverse Effect”). The as defined below) and as described in the Registration Statement, the Pricing Prospectus and the Prospectus; and the Investment Adviser owns, possesses or has no wholly owned subsidiariesobtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under the Investment Adviser Agreements (as defined below) and as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement and the Investment Advisory Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyanceexcept in each case for such conflicts or breaches which do not, insolvencyeither alone or in the aggregate, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in have a proceeding in equity or at law, and (b) with respect to termination under material adverse effect on the Investment Company Act or the reasonableness or fairness of compensation payable thereunderAdviser's ability to perform its obligations under any Investment Adviser Agreement.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Pricing Prospectus and the Prospectus, in light of the circumstances under which they were made) not misleading.
(g) Except as disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or nature required to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects be disclosed in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not might reasonably be expected to have a material adverse effect on the power or Investment Adviser's ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAdvisory Agreement.
(h) The In the event that the Fund or the Investment Adviser has made available any Road Show Materials or promotional materials (other than the financial resources available Sales Materials) by means of an Internet web site or similar electronic means such as to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgebona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeregistered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (DNP Select Income Fund Inc)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Additional Compensation Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the condition, financial or otherwise, or on the prospects, earnings, business or operations of Shareholder Servicing Agreement the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributed to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ni) The Investment Adviser maintains a system has not made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general an Internet web site or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtusimilar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (John Hancock Preferred Equity)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) you as follows:
(a) The Investment Adviser has been is a limited liability company duly formed and is validly existing in good standing under the laws of the State of California Delaware, with the full limited liability company power and authority to own own, lease and operate its property properties and to conduct its business as described in each of the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, (or any amendment or supplement to either of them) and is duly registered and qualified to transact conduct business and is in good standing in each jurisdiction in which or place where the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure so to be so qualified register or be in good standing to qualify would not be reasonably expected to have a material material, adverse effect affect on the condition, condition (financial or otherwiseother), general affairs, business, properties, net assets or on the prospects, earnings, business or results of operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesFund.
(b) The Investment Adviser is [or will be prior to the Initial Closing Date] duly registered with the Commission as an investment adviser under the Investment Advisers Act, Act and is not prohibited by the Investment Advisers Act, the 1940 Act, the Investment Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser to under the Company Investment Advisory Agreement for the Fund as contemplated by the Investment Advisory Agreement, Registration Statement and or the Prospectus, and no order Prospectus (or any amendment or supplement to either of suspension or revocation of such them). There does not exist any proceeding which could reasonably expected to have a material adverse affect on the registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by Adviser with the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is a party Adviser, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to which either of them) but are not described as required or that could reasonably be expected to result in any material, adverse change in the condition (financial or other), properties, net assets or results of the properties operations of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not may have a material material, adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreement by the Investment Adviser, nor the consummation by the Investment Adviser of the transactions contemplated by hereby or thereby (i) [except for the Registration Statement and completion of the Prospectus Investment Adviser's registration with the Commission under the Investment Advisers Act], requires the Investment Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Investment Adviser or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents of the Investment Adviser or (ii) that are required conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Investment Adviser is a party or by which the Investment Adviser or any of its properties may be described bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Adviser or any of its properties or will result in the Registration Statement creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Prospectus Investment Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject, except in any case under clause (i) or (ii) as should not reasonably be expected to have a material adverse effect on the ability of the Investment Adviser to perform its obligations under this Agreement and are the Investment Advisory Agreement. The Investment Adviser is not so describedsubject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(ge) The Investment Adviser has all necessary consentsfull power and authority to enter into this Agreement and the Advisory Agreement, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications the execution and registrations of and fromdelivery of, and has made all declarations the performance by the Investment Adviser of its obligations under, this Agreement and filings withthe Advisory Agreement have been duly and validly authorized by the Investment Adviser and this Agreement and the Advisory Agreement have been duly executed and delivered by the Investment Adviser and constitute the valid and legally binding agreements of the Investment Adviser, all governmental authoritiesenforceable against the Investment Adviser in accordance with their terms, self-regulatory organizations except as rights to indemnity and courts contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Investment Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other tribunals, laws relating to or affecting creditors' rights generally and by general equitable principles whether foreign enforcement is considered in a proceeding in equity or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectat law.
(hf) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and or the Prospectus and by (or any amendment or supplement to either of them) or under this Agreement and or the Investment Advisory Agreement Agreement.
(g) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which it they were made) not misleading.
(h) Since the date as of which information is a partygiven in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Investment Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by the Investment Adviser which are material to the Investment Adviser other than those in the ordinary course of its business as described in the Prospectus.
(i) The Investment Advisory Agreement is in full force and effect and Upon the registration of the Investment Adviser is not with the commission under the Investment Advisers Act, the Investment Adviser has or will have all such licenses, permits and authorizations of governmental or regulatory authorities ("Adviser permits") as are necessary to own its property and to conduct its business in default thereunder, the manner described in the Prospectus (and any amendment or supplement thereto); the Investment Adviser has fulfilled and performed all its material obligations with respect to such Adviser permits and no event has occurred which with the passage allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the giving rights of notice or both would constitute a default by the Investment Adviser under any such document, except to the extent that such default would not have an Adviser Material Adverse Effectpermit.
(j) None This Agreement and the Advisory Agreement each comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or the Prospectus (or in any amendment or supplement to any of the foregoing), the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takennot taken and will not take, directly or indirectly, any action designed to or which constitutes or is designed might reasonably be expected to cause or result in, in or which could reasonably be expected to constitute, cause or result in, the will constitute stabilization or manipulation of the price of the Shares or of any security securities issued by the Fund to facilitate the sale or resale of the Shares.
(k) The operations , in each case, in violation of federal securities laws and the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit is not aware of any such action taken or proceeding to be taken by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge affiliates of the Investment Adviser, threatened.
(l) None of In the event that the Fund or the Investment Adviser nor, to its knowledge, makes available any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation promotional materials intended for use only by such persons of the FCPA, including, without limitation, making use of the mails or any qualified broker-dealers and registered representatives thereof by means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue effectively prohibit access to ensure, continued compliance therewithsuch promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(m) None of All advertising, sales literature or other promotional material (including "prospectus wrappers," "broker kits," "road show slides," and "road show scripts" authorized in writing by or prepared by or for the Fund or the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly for use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering and sale of the Shares shall (collectively, "sales material")) complied and comply in all 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 deemed filed with the NASD under the NASD's conduct rules, were so filed, and no such sales material, when read together with the Prospectus, contained or contains an untrue statement of a material fact or omitted or omits to state a representation and warranty by material fact required to be stated therein or necessary to make the Investment Adviser as to statements therein, in light of the matters covered therein to Virtucircumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Distribution Agreement (Advantage Advisers Multi - Sector Fund I)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that where the failure to be so licensed or qualified or be in good standing would not reasonably be reasonably expected to have a material adverse effect on the condition, condition of the Investment Adviser (financial or otherwise), or on the prospects, its earnings, business affairs, business prospects, management, property or results of operations of the Investment Adviser, or on the Investment Adviser’s ability to provide services to the Fund, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Investment Adviser Material Adverse Effect”). The ; and the Investment Adviser owns, possesses or has no wholly owned subsidiariesobtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus except those the absence of which, either individually or in the aggregate, would not reasonably be expected to have an Investment Adviser Material Adverse Effect.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor therefore initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Distribution Agreement, the Support Services Agreement, the Subscription Agreement and the Fee Agreements (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Investment Adviser. This ; each Adviser Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply complies in all material respects with the all applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory each Adviser Agreement to which the Investment Adviser is constitutes or will constitute a party represents a legal, valid and binding agreement obligation of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, (i) subject, as to enforcement, to applicable bankruptcy, insolvency reorganization, moratorium, fraudulent conveyance and other similar laws affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law) and (ii) except (a) as rights to indemnity and or contribution thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderlaws.
(d) The Neither (i) the execution and delivery by the Investment Adviser of, and of any Adviser Agreement nor (ii) the performance by the Investment Adviser of its obligations under, this or the consummation by the Investment Adviser of the transactions contemplated by, any Adviser Agreement does not conflict with conflicts or will not conflict with, or results or will result in, or constitute in a violation, breach of, or default under, (x) operating agreement the Limited Liability Company Operating Agreement of the Investment Adviser Adviser, (y) any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon to which the Investment Adviser that is material to a party or by which the Investment Adviser is bound, or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect to except in the case of clauses (y) or (z), any contravention which for such conflict or breach which, either individually or in the aggregate, would not be reasonably expected to have neither (i) an Investment Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuEffect.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by for the Investment Adviser for consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained and as under the Securities Act, the Investment Company Act, or the Advisers Act, (ii) may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the FINRA or under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement and (iii) the absence of which, either individually or (iv) such as which in the failure aggregate, would not be reasonably be expected to obtain would have neither (i) an Investment Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementEffect.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is of a party or nature required to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects be disclosed in the Registration Statement and Statement, the Pricing Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign disclosed or domestic, that if determined adversely would reasonably be expected to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Investment Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAgreement.
(i) The Investment Advisory Agreement Except for stabilization activities conducted by the Underwriters and except for tender offers, Share repurchases and the issuance or purchase of Shares pursuant to the Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in full force accordance with the policies of the Fund as set forth in the Pricing Prospectus and effect and the Prospectus, the Investment Adviser is has not in default thereunder, taken and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would will not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(j) In the event that the Fund or the Investment Adviser has made available any security Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to facilitate constitute a bona fide electronic road show, the sale Investment Adviser has installed and maintained pre-qualification and password-protection or resale of the Sharessimilar procedures which are designed and reasonably expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(k) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(l) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(m) Neither the Investment Adviser nor any person associated with or acting on behalf of the Investment Adviser including, without limitation, any director, officer, agent or employee of the Investment Adviser, has, directly or indirectly, while acting on behalf of the Investment Adviser (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds, (iii) violated any provision of the FCPA, or (iv) made any other unlawful payment.
(n) The operations of the Investment Adviser and its subsidiaries, if any, are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending orpending, or to the best knowledge of the Investment Adviser, threatened.
(lo) None Neither the Investment nor any director or officer of the Investment Adviser nor, to its knowledgethe knowledge of the Investment Adviser, any director, officer, agent, employee or affiliate other Person associated with or acting on behalf of the Investment Adviser Fund is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of currently the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment subject of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC Sanctions; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entityPerson, for the purpose of financing the activities or business of or with any Person, or in any country or territory, that is the subject of any person currently subject to OFAC Sanctions at the time of such financing. In addition, any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Ares Dynamic Credit Allocation Fund, Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Agreement, as of each Applicable the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State The Commonwealth of California Massachusetts, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, the [Structuring Fee Agreement], and the Additional Compensation Agreement, to which the Investment Adviser is a party (collectively, the "Adviser Agreements"), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation New York Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) Except as disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment any Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(ki) The operations of In the event that the Fund or the Investment Adviser are makes available any Road Show Materials or promotional materials (other than the Sales Materials) intended for use only by qualified broker-dealers and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding registered representatives thereof by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed which will effectively prohibit access to ensure, such Road Show Materials or promotional materials by persons other than qualified broker-dealers and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeregistered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Illinois with the full power and authority to own perform its property obligations under the Investment Adviser Agreements (as defined below) and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which it is required to be so qualified in order to perform its obligations under the conduct of its business or its ownership or leasing of property requires such qualificationInvestment Adviser Agreements (as defined below) and as described in the Registration Statement and Prospectus, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of 's ability to perform its obligations under the Investment Adviser Agreements (as defined below) and as described in the Registration Statement and Prospectus; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this the Investment Adviser Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesas defined below) and as described in the Registration Statement and Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement and the Investment Advisory Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyanceexcept in each case for such conflicts or breaches which do not, insolvencyeither alone or in the aggregate, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in have a proceeding in equity or at law, and (b) with respect to termination under material adverse effect on the Investment Company Act or the reasonableness or fairness of compensation payable thereunderAdviser's ability to perform its obligations under any Investment Adviser Agreement.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation New York Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus), in light of the circumstances under which they were made, not misleading.
(g) Except as disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or nature required to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects be disclosed in the Registration Statement and the or Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not might reasonably be expected to have a material adverse effect on the power or Investment Adviser's ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAdvisory Agreement.
(h) The Investment Adviser has In the financial resources available to it necessary for event that the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and Fund or the Investment Adviser is not in default thereunder, makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and no event has occurred which with the passage of time or the giving of notice or both would constitute a default registered representatives thereof by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password- protection or similar procedures designed which will effectively prohibit access to ensure, such promotional materials by persons other than qualified broker-dealers and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeregistered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (DNP Select Income Fund Inc)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Sales Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time this Sales Agreement and as of each Settlement Date (as defined below) Date, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California New York, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Sales Agreement, the Investment Advisory Agreement and the Sub-Administration Agreement (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (A) the Limited Liability Company Operating Agreement or Articles of Organization of the Investment Adviser, (B) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except or any law, rule or regulation, or (aC) as rights any order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation American Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or “blue sky” laws, in connection with the offer or sale distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Sales Manager pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Sales Agreement.
(f) There are The description the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as set forth in the Registration Statement and the Prospectus, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The or that might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations or the ability of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, the Investment Adviser to own and use fulfill its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an respective obligations under any Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or (i) manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws or resale (ii) except for stabilization activities conducted by underwriters in connection with other offerings of the SharesCommon 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 Shares is completed in accordance with the policies of the Fund as set forth in the Prospectus, stabilization.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgesuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Sales Manager or its counsel in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser as to the matters covered therein thereby, to Virtuthe Sales Manager.
Appears in 1 contract
Samples: Sales Agreement (Gabelli Global Gold, Natural Resources & Income Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each of the Underwriters as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State jurisdiction of California with its organization, has the limited partnership power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Management Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory Agreement, Registration Statement and the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement and the Investment Management Agreement, has been duly authorized, executed and delivered by the Investment Adviser. This Adviser and each of this Agreement and the Investment Advisory Management Agreement to which the Investment Adviser is a party comply in complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of this Agreement and the Investment Management Agreement (assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser ) is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, under this Agreement does not conflict with or and the Investment Management Agreement will not conflict with, result in, or constitute a violation, breach of, or default under, contravene (x) operating the limited partnership agreement of the Investment Adviser Adviser, (y) any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser adviser that is material to the Investment Adviser Adviser, or (z) any law, rule or regulation law applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment AdviserInvestment, whether foreign or domestic, other than state securities or “blue sky” laws applicable in connection with the purchase and distribution of Shares by the Underwriters pursuant to this Agreement; except, with respect to clauses clause (yx) or (zy), any contravention which would not have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementInvestment Adviser; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtuany Underwriter.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or and the Investment Advisory Agreement to which it is a partyManagement Agreement, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky lawssky” laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would not have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementInvestment Adviser.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the Investment Adviser, or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents of the Investment Adviser that are required to be described in the Registration Statement or the Prospectus that are not described as required.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effecthave a material adverse effect on the Investment Adviser.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyManagement Agreement.
(i) The Investment Advisory Management Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment Adviser, any other party to the Investment Management Agreement is not in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of All information furnished by the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result infor use in the Registration Statement, the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Sale Prospectus and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPAProspectus, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None description of the Investment Adviser nor(the “Investment Adviser Information”) does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to its knowledgestate any material fact necessary to make such information not misleading (in the case of the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which such information is provided).
(k) There has not occurred any directormaterial adverse change, officeror any development involving a prospective material adverse change, agentin the condition, employee financial or affiliate otherwise, or in the earnings, business or operations of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC from that set forth in the Time of Sale Prospectus, and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) there have been no transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty entered into by the Investment Adviser as which are material to the matters covered therein to VirtuInvestment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Cushing MLP Total Return Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a limited liability company under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Underwriting Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Additional Compensation Agreements (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement, Agreement and the Additional Compensation Agreements being referred to herein as the case may be"Investment Adviser Agreements"), and the Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of perform its obligations under the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Agreements; and the Investment Adviser owns, possesses or has no wholly owned subsidiariesobtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under the Investment Adviser Agreements.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of the Investment Adviser Agreements and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act and the applicable Rules and Regulations. Assuming the Act; and, assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under, any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser a Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Dates for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky laws” of the various states and foreign jurisdictions sky" laws in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Except for stabilization activities conducted by the Managing Representative and except for tender offers, Share repurchases and the issuance or purchase of 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Shares in violation of the Sharesapplicable federal securities laws.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ni) The Investment Adviser maintains a system has not made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general an Internet web site or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtusimilar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (John Hancock Tax-Advantaged Dividend Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State jurisdiction of California with its organization, has the power and authority to own its property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) could reasonably be reasonably expected to have a material adverse effect on the condition, Investment Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), or on the prospects, earnings, business business, operations, properties, management or operations personnel of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the (“Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries, except for Stone Harbor Services (UK) Limited, Stone Harbor Asia Holdings LLC, Stone Harbor Investment Partners (UK), LLP and Stone Harbor Investment Partners PTE. LTD.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory AgreementRegistration Statement, Registration Statement the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, or threatened by the Commission.
(c) This Each of this Agreement, the Investment Advisory Agreement, the Subscription Agreement, the Expense Reimbursement Agreement, the Distribution Assistance Agreement, the Structuring Fee Agreement and the Syndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Investment Adviser and Citigroup Global Markets Inc. (the “Citi Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and UBS Securities LLC (the “UBS Fee Agreement”) and the Structuring Fee Agreement between the Investment Adviser and RBC Capital Markets, LLC (the “RBC Fee Agreement” and, together with the Xxxxxx Xxxxxxx Fee Agreements, the “Fee Agreements”) (this Agreement, the Investment Advisory Agreement, the Subscription Agreement, the Distribution Assistance Agreement and the Fee Agreements are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Investment Adviser. This Agreement Adviser and the Investment Advisory Agreement to which the Investment Adviser is a party comply complies in all material respects with the all applicable provisions of the ActsInvestment Company Act, the Advisers Act and the applicable Rules rules and Regulationsregulations thereunder. Assuming the due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes the Investment Advisory Agreement to which the Investment Adviser is a party represents a legal, valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by equitable principles of general applicability (regardless of whether enforcement is sought in a proceeding in equity or at law) and except (a) as rights to indemnity and contribution thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderlaws.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or under the Adviser Agreements will not conflict with, result in, contravene any provision of applicable law or constitute a violation, breach of, the limited partnership agreement or default under, (x) operating agreement by-laws of the Investment Adviser (y) or any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any lawAdviser, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) . No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementShares.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, or threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not have an Investment Adviser Material Adverse Effect, or that would not have a material an adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in have an Investment Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAdviser Agreements.
(ih) The Investment Advisory Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document.
(i) All information furnished by the Investment Adviser under for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make such document, except to the extent that such default would information not have an Adviser Material Adverse Effectmisleading.
(j) None There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the Investment Adviser norfrom that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Investment Adviser which are material to its knowledge, any the Investment Adviser other than those in the ordinary course of its respective affiliates, has taken, directly business or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, as described in the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the SharesSale Prospectus.
(k) The operations of Neither the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit nor any of its subsidiaries or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledgeaffiliates, any director, officer, agentor employee thereof, employee nor, to the Investment Adviser’s knowledge, any agent or affiliate representative of the Investment Adviser is aware or of any of its subsidiaries or affiliates, has taken or will take any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly action in furtherance of an offer, payment, promise to pay pay, or authorization or approval of the payment or giving of any money, or other property, giftgifts or anything else of value, promise to givedirectly or indirectly, or authorization of the giving of anything of value to any “foreign government official” (as such term is defined in the FCPA) including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any foreign person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official thereof or any candidate for foreign political office, in contravention of the FCPA ) to influence official action or secure an improper advantage; and to its knowledge, the Investment Adviser and its subsidiaries and affiliates have conducted their businesses in all material respects in compliance with applicable anti-corruption laws including, without limitation, the FCPA FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to ensure, promote and which are reasonably expected to continue to ensure, continued achieve compliance therewithwith such laws and with the representation and warranty contained herein.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(nl) The Investment Adviser maintains a system of internal controls sufficient designed to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization authorization; and (ii) access to the CompanyFund’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf .
(m) The operations of the Investment Adviser and delivered to Virtu or its counsel subsidiaries are and have been conducted at all times in connection compliance with the offering of the Shares shall be deemed to a representation Anti-Money Laundering Laws, and warranty no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser as or any of its subsidiaries with respect to the matters covered therein Anti-Money Laundering Laws is pending or, to Virtuthe knowledge of the Investment Adviser, threatened.
(i) The Investment Adviser represents that neither it nor any of its subsidiaries or affiliates, any director, officer, or employee thereof, nor, to the Investment Adviser’s knowledge, any agent or representative of the Investment Adviser or any of its subsidiaries or affiliates, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the subject of any Sanctions, nor (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).
(ii) The Investment Adviser represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Adviser Person: (A) to fund or facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Adviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Investment Adviser represents and covenants that, for the past 5 years, it and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Stone Harbor Emerging Markets Total Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State jurisdiction of California with its organization, has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Management Agreement as an investment adviser to the Company Fund as contemplated by the Time of Sale Prospectus, or [capacity in other agreements executed by the Investment Advisory Agreement, Registration Statement and the ProspectusAdviser], and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement, the Investment Management Agreement, the Marketing and Structuring Fee Agreement dated as of the date hereof between the Adviser and Mxxxxx Sxxxxxx & Co. Incorporated (the “Marketing and Structuring Fee Agreement”) and [other agreements executed by the Investment Adviser] (this Agreement, the Investment Management Agreement, the Marketing and Structuring Fee Agreement and [other agreements executed by the Investment Adviser] are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Investment Adviser. This Agreement Adviser and the Investment Advisory Agreement to which the Investment Adviser is a party comply in complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser Agreements is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereundergeneral applicability.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or under the Adviser Agreements will not conflict with, result in, or constitute a violation, breach of, or default under, contravene (x) operating any provision of applicable law or the limited partnership agreement of the Investment Adviser (y) or any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser Adviser, or (zy) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; , except, with respect to clauses this clause (y) or (z), any such foreign judgment, order or decree the contravention of which would have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect or (ii) a material an adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation Agreement or warranty is made with respect to compliance with the laws of on any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) Underwriter. No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or and the Investment Advisory Agreement to which it is a partyManagement Agreement, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect nor or (ii) a material an adverse effect on the consummation of the transactions contemplated by this AgreementAgreement or on any Underwriter.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the Investment Adviser, or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an have a material adverse effect on the Investment Adviser Material Adverse Effector on the Fund.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAdviser Agreements.
(ih) The Investment Advisory Management Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document.
(i) All information furnished by the Investment Adviser under such document, except to for use in the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result inRegistration Statement, the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Sale Prospectus and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPAProspectus, including, without limitation, making use the description of the mails Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any means or instrumentality of interstate commerce corruptly material fact necessary to make such information not misleading (in furtherance of an offer, payment, promise to pay or authorization case of the payment Time of any moneySale Prospectus and the Prospectus, or other property, gift, promise to give, or authorization in light of the giving of anything of value to any “foreign official” (as such term circumstances under which it is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithcommunicated).
(mj) None There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Investment Adviser norfrom that set forth in the Time of Sale Prospectus, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) there have been no transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty entered into by the Investment Adviser as which are material to the matters covered therein to VirtuInvestment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Cushing MLP Total Return Fund)
Representations and Warranties of the Investment Adviser. The ------------------------------------------------------------- Investment Adviser represents and warrants to and agrees with Virtu each Underwriter that, as of the date hereof and as of each Representation Date (as defined or at such other time or times identified below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been is a duly formed limited partnership and is validly existing in good standing under the laws of the State of California with Delaware and the Subadviser is a duly formed limited liability company and validly existing in good standing under the laws of the State of Delaware. Each Adviser has full power and authority to own own, lease and operate its property properties and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly registered and qualified to transact conduct business and is in good standing in each jurisdiction in which or place where the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure so to be so qualified register or be in good standing to qualify would not be reasonably expected to have a material material, adverse effect on the condition, financial Investment Adviser's or otherwise, or Subadviser's ability to provide services on the prospects, earnings, business or operations behalf of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesFund.
(b) The Investment Adviser Each of the Advisers is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser for the Fund under the Fund Agreements to the Company which it is a party as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of the Advisers has full power and authority to enter into this Agreement has and the Fund Agreements to which it is a party; the execution and delivery of, and the performance by each Adviser of its obligations under, this Agreement and the Fund Agreements to which it is a party have been duly authorized, and validly authorized by each Adviser; and this Agreement and the Fund Agreements to which it is a party have been duly executed and delivered by each Adviser and constitute the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and legally binding agreement agreements of the Investment Adviser such Adviser, enforceable against the Investment such Adviser in accordance with its their terms, except (a) as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment such Adviser’s 's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other laws relating to or affecting creditors’ ' rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderprinciples.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement Each of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by under this Agreement and the Investment Advisory Agreement Fund Agreements to which it is a party.
(ie) The Investment Advisory Agreement is in full force description of each Adviser and effect its business, and the Investment statements attributable to each Adviser, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and do 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 (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of each Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that reasonably should result in default thereunderany material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 either Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by either Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Each of the Advisers 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; each of the Advisers has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which with the passage allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the giving rights of notice or both such Adviser under any such permit, other than impairments that would constitute not reasonably be expected to have a default by material, adverse effect on the Investment Adviser under such documentor Subadviser, except to as applicable.
(i) This Agreement and each of the extent that such default would not have an Adviser Material Adverse EffectManagement Agreement and the Portfolio Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) None Neither the execution, delivery or performance of this Agreement or the Fund Agreements by each Adviser which is a party thereto, nor the consummation by each Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, 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 (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement, compliance with NYSE rules and 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 or a default under, the limited partnership agreement, the limited liability company agreement or other organizational documents, as applicable, of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which either Adviser is a party or by which it or any of its properties is bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to either Adviser 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 either Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it is bound or to which any of the property or assets of such Adviser is subject.
(k) Except for (i) tender offers, (ii) Share repurchases and the issuance or purchase of Shares pursuant to any dividend reinvestment plan of the Fund in effect on the date hereof, 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 and
(iii) sale of the Investment Adviser norShares to the Investment Adviser pursuant to this Agreement, to its knowledge, any of its respective affiliates, neither Adviser has takentaken nor will either Adviser take, directly or indirectly, any action designed or which constitutes or is designed might be reasonably expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Shares in violation of applicable federal securities laws; provided that, for sake of clarity, no action taken by an Underwriter that is an affiliate of the Shares.
(k) The operations Fund shall be deemed to be taken, directly or indirectly, by either Adviser for purposes of this section. For the avoidance of any doubt, stabilization transactions conducted by the Underwriters shall not be deemed to be actions of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatenedAdvisers.
(l) None In the event that the Fund or the Advisers makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation proprietary Internet web site administered by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with Fund or the FCPA and have instituted Advisers will install and maintain policies pre-qualification and password- protection or similar procedures designed to ensure, and which are reasonably expected designed to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) restrict access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturepresentatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Pimco Corporate Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter that, as of the date hereof and as of each Representation Date (as defined or at such other time or times identified below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been Each of the Advisers is a duly formed limited liability company and is validly existing in good standing under the laws of the State of California with the Delaware. Each Adviser has full power and authority to own own, lease and operate its property properties and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly registered and qualified to transact conduct business and is in good standing in each jurisdiction in which or place where the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure so to be so qualified register or be in good standing to qualify would not be reasonably expected to have a material material, adverse effect on the condition, financial Investment Adviser's or otherwise, or Subadviser's ability to provide services on the prospects, earnings, business or operations behalf of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesFund.
(b) The Investment Adviser Each of the Advisers is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser for the Fund under the Fund Agreements to the Company which it is a party as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of the Advisers has full power and authority to enter into this Agreement has and the Fund Agreements to which it is a party; the execution and delivery of, and the performance by each Adviser of its obligations under, this Agreement and the Fund Agreements to which it is a party have been duly authorized, and validly authorized by each Adviser; and this Agreement and the Fund Agreements to which it is a party have been duly executed and delivered by each Adviser and constitute the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and legally binding agreement agreements of the Investment Adviser such Adviser, enforceable against the Investment such Adviser in accordance with its their terms, except (a) as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment such Adviser’s 's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other laws relating to or affecting creditors’ ' rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderprinciples.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement Each of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by under this Agreement and the Investment Advisory Agreement Fund Agreements to which it is a party.
(ie) The Investment Advisory Agreement is in full force description of each Adviser and effect its business, and the Investment statements attributable to each Adviser, in the Registration Statement and the Prospectus complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and do 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 (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of each Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that reasonably should result in default thereunderany material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 either Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by either Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Each of the Advisers 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; each of the Advisers has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which with the passage allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the giving rights of notice or both such Adviser under any such permit, other than impairments that would constitute not reasonably be expected to have a default by material, adverse effect on the Investment Adviser under such documentor Subadviser, except to as applicable.
(i) This Agreement and each of the extent that such default would not have an Adviser Material Adverse EffectManagement Agreement and the Portfolio Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) None Neither the execution, delivery or performance of this Agreement or the Fund Agreements by each Adviser which is a party thereto, nor the consummation by each Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, 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 (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement, compliance with NYSE rules and 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 or a default under, the limited liability company agreement or other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which either Adviser is a party or by which it or any of its properties is bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to either Adviser 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 either Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it is bound or to which any of the property or assets of such Adviser is subject.
(k) Except for (i) tender offers, (ii) Share repurchases and the issuance or purchase of Shares pursuant to any dividend reinvestment plan of the Fund in effect on the date hereof, 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 and (iii) sale of the Investment Adviser norShares to the Investment Adviser pursuant to this Agreement, to its knowledge, any of its respective affiliates, neither Adviser has takentaken nor will either Adviser take, directly or indirectly, any action designed or which constitutes or is designed might be reasonably expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Shares in violation of applicable federal securities laws; provided that, for sake of clarity, no action taken by an Underwriter that is an affiliate of the Shares.
(k) The operations Fund shall be deemed to be taken, directly or indirectly, by either Adviser for purposes of this section. For the avoidance of any doubt, stabilization transactions conducted by the Underwriters shall not be deemed to be actions of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatenedAdvisers.
(l) None In the event that the Fund or the Advisers makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation proprietary Internet web site administered by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with Fund or the FCPA and have instituted Advisers will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) restrict access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturepresentatives thereof.
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to to, and agrees with Virtu as of the date hereof and as of with, each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser Each of the Advisers has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State jurisdiction of California its organization, with the full company power and authority to own own, lease and operate its property properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may beProspectus, and is duly qualified to transact do business and is in good standing in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing qualify would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or such Adviser’s ability to provide services on the prospects, earnings, business or operations behalf of the Investment AdviserFund pursuant to the Management Agreement or the Portfolio Management Agreement, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesas applicable.
(b) The Investment Adviser Each of the Advisers is duly registered with the Commission as an investment adviser under the Advisers Act, Act and each Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting under the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement, as an investment adviser to the Company applicable, as contemplated by the Investment Advisory Agreement, Registration Statement Preliminary Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement and the Sub-Adviser has full power and authority to enter into the Portfolio Management Agreement and the Structuring Fee Agreement; the execution and delivery of, and the performance by the Investment Adviser of its obligations under, this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement have been duly authorizedand validly authorized by the Investment Adviser, and the execution and delivery of, and the performance by the Sub-Adviser of its obligations under the Portfolio Management Agreement and the Structuring Fee Agreement have been duly and validly authorized by the Sub-Adviser; and this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement have been duly executed and delivered by the Investment Adviser. This Adviser and the Portfolio Management Agreement and the Investment Advisory Structuring Fee Agreement have been duly executed and delivered by the Sub-Adviser, and each such agreement to which the Investment an Adviser is a party comply in all material respects with constitutes the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and legally binding agreement of the Investment Adviser such Adviser, enforceable against the Investment such Adviser in accordance with its terms, except (a) as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment such Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderprinciples.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement Each of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Preliminary Prospectus and the Prospectus and by under this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Investment Advisory Agreement to which it is a partyAdditional Compensation Agreement, as applicable.
(ie) The Investment Advisory Agreement is in full force description of each Adviser and effect its business, and the Investment Adviser is not statements attributable to such Adviser, in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result inRegistration Statement, the stabilization or manipulation of Preliminary Prospectus and the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Prospectus complied and have been conducted at all times in compliance comply in all material respects with applicable Money Laundering Laws the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) With respect to each Adviser, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment such Adviser with respect to the Money Laundering Laws or its property is pending or, to the best knowledge of the Investment such Adviser, threatenedthreatened that (i) is required to be described in the Preliminary Prospectus and the Prospectus that is not so described as required, (ii) could reasonably be expected to have a material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement, as applicable, or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) With respect to each Adviser, since the date as of which information is given in the Preliminary Prospectus and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or other), prospects, earnings, business or properties of such Adviser, whether or not arising from the ordinary course of business and (ii) there have been no transactions entered into by such Adviser other than those in the ordinary course of its business as described in the Preliminary Prospectus and the Prospectus, except where such transactions could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser.
(h) Each Adviser possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business in the manner described in the Preliminary Prospectus and the Prospectus, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, in each case except as set forth in or contemplated in the Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(i) This Agreement, the Management Agreement and the Portfolio Management Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement, except such as have been made or obtained under the Act, the 1940 Act and the Exchange Act, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Preliminary Prospectus and the Prospectus, or for compliance with the rules and regulations of the NASD and the NYSE.
(k) With respect to each Adviser, neither the execution, delivery or performance of this Agreement or the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement or the Additional Compensation Agreement to which such Adviser is a party, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to (i) the organizational documents of such Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which such Adviser is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Adviser or any of its properties.
(l) None of the Investment Each Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any actionnot taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in a violation by such persons in, under the Exchange Act or otherwise, stabilization or manipulation of the FCPA, including, without limitation, making use price of any security of the mails Fund to facilitate the sale or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization resale of the payment Securities, and each Adviser is not aware of any money, such action taken or other property, gift, promise to give, or authorization be taken by any affiliates of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithAdviser.
(m) None In the event that the Fund or either Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by registered broker-dealers and registered representatives thereof by means of the Investment an Internet web site or similar electronic means, such Adviser nor, or its affiliates will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorizationsuch promotional materials by persons other than registered broker-dealers and registered representatives thereof. Any certificate signed by or on behalf any officer of the Investment an Adviser and delivered to Virtu the Representatives or its counsel for the Underwriters in connection with the offering of the Shares Securities shall be deemed to a representation and warranty by the Investment Adviser such Adviser, as to the matters covered therein therein, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Nicholas-Applegate Equity & Convertible Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsCompany that:
(a) The the Investment Adviser has been is duly formed organized and is validly existing in good standing under the laws of Delaware and has the State of California with the full power and authority to own its property and to conduct its transact the business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, which it is presently engaged and is duly qualified to transact business and is in good standing in under the laws of each jurisdiction in which where the conduct of its business requires, or the performance of its ownership or leasing obligations under this Agreement and the provisions of property requires the Loan Documents applicable to the Investment Adviser would require, such qualification, except to the extent that the failure for failures to be so qualified qualified, authorized or be in good standing licensed which would not be reasonably expected to in the aggregate have a material adverse effect on the conditionbusiness, operations, assets or financial or otherwise, or on the prospects, earnings, business or operations condition of the Investment Adviser, whether or not arising from transactions in on the ordinary course of business ability of the Investment Adviser to perform its obligations under, or under on the validity or enforceability of, this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.and the applicable provisions of the Loan Documents;
(b) The the Investment Adviser is registered with the Commission as an investment adviser has full power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder and under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser Loan Documents applicable to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.;
(c) This this Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement Adviser and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents constitutes a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser it in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder thereof may be limited by subject to (i) bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether such enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.);
(d) The execution and delivery by the Investment Adviser ofis not in violation of any material federal or state securities law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, and investigation, action, suit or proceeding before 6 or by any court, exchange or regulatory agency pending or, to the best knowledge of the Investment Adviser, threatened, that in either case would have a material adverse effect upon the performance by the Investment Adviser of its obligations underduties under this Agreement;
(e) neither the execution and delivery of this Agreement, this Agreement does not conflict nor the performance of the terms hereof or the provisions of the Loan Documents applicable to the Investment Adviser, conflicts with or will not conflict with, result in, results in a material breach or constitute a violation, breach violation of any of the material terms or provisions of, or constitutes a material default under, (xi) operating its charter or other constituent document, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Investment Adviser is a party or is bound, (yiii) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material statute applicable to the Investment Adviser Adviser, or (ziv) any law, decree, order, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any court or regulatory, administrative or governmental bodyagency, agency body or court authority or arbitrator having or asserting jurisdiction over the Investment AdviserAdviser or its properties, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention and which would have neither (i) an Adviser Material Adverse Effect or have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for upon the performance by the Investment Adviser of its obligations duties under this Agreement or the provisions of the Loan Documents applicable to the Investment Advisory Agreement to which Adviser; and
(f) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by it is a partyof its duties hereunder, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, duly made or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreementobtained.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Samples: Investment Management Agreement (Barings BDC, Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into obligations under this Agreement and Agreement, the Investment Advisory Agreement, as and the case may beAdministration Agreement, and the Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the conditionAdministration Agreement, financial or otherwise, or on the prospects, earnings, business or operations of and the Investment Adviser, whether or not arising from transactions in the ordinary course of business of Advisory Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement (an “Adviser Material Adverse Effect”). The Agreement, the Investment Adviser has no wholly owned subsidiariesAdvisory Agreement, and the Administration Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, and the Administration Agreement (collectively, this Underwriting Agreement, the Investment Advisory Agreement, and the Administration Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources not made available to it necessary any promotional materials intended for the performance of its services use only by qualified broker-dealers and obligations as contemplated in the Registration Statement and the Prospectus and registered representatives thereof by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsimilar electronic means.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Municipal High Income Advantage Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, and the Shareholder Servicing Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation American Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The any Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(ki) The operations of In the event that the Fund or the Investment Adviser are makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding registered representatives thereof by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Limited Duration Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser has been duly formed and incorporated, is validly existing as a corporation in good standing under the laws of the State jurisdiction of California with its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory Agreement, Registration Statement and the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement and the Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviser. This ; the Marketing and Structuring Fee Agreement (the “Marketing and Structuring Fee Agreement”) dated the date hereof between MSIM and Xxxxxx Xxxxxxx & Co. Incorporated has been duly authorized, executed and delivered by MSIM; and each of this Agreement, the Investment Advisory Agreement to which and the Investment Marketing and Structuring Fee Agreement (collectively, the “Adviser is a party comply in Agreements”) complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser Agreements is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereundergeneral applicability.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or the Adviser Agreements will not conflict with, result in, or constitute a violation, breach of, or default under, contravene (x) operating agreement any provision of applicable law or the articles of incorporation or bylaws of the Investment Adviser (y) or any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser Adviser, or (zy) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; , except, with respect to clauses this clause (y) or (z), any such foreign judgment, order or decree the contravention of which would neither have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect or (ii) a material an adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation Agreement or warranty is made with respect to compliance with the laws of on any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) Underwriter. No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations or the Exchange Act Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would neither have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect nor or (ii) a material an adverse effect on the consummation of the transactions contemplated by this AgreementAgreement or on any Underwriter.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the Investment Adviser, or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an have a material adverse effect on the Investment Adviser Material Adverse Effector on the Fund.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAdviser Agreements.
(ih) The Investment Advisory Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document. The Adviser Agreements conform in all material respects to the descriptions thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(i) All information furnished by the Investment Adviser under such document, except to for use in the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result inRegistration Statement, the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Sale Prospectus and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPAProspectus, including, without limitation, making use the description of the mails Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any means or instrumentality of interstate commerce corruptly material fact necessary to make such information not misleading (in furtherance of an offer, payment, promise to pay or authorization case of the payment Time of any moneySale Prospectus and the Prospectus, or other property, gift, promise to give, or authorization in the light of the giving of anything of value to any “foreign official” (as such term circumstances under which it is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithcommunicated).
(mj) None There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Investment Adviser norfrom that set forth in the Time of Sale Prospectus, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) there have been no transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty entered into by the Investment Adviser as which are material to the matters covered therein to VirtuInvestment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Frontier Emerging Markets Fund, Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter, as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a limited partnership under the laws of the State of California with the Delaware; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and Prospectus; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property other activity requires such qualification, except to the extent that the such failure to be so qualified or to be in good standing does not or would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of Investment Adviser’s ability to perform its obligations under this Underwriting Agreement and the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Management Agreement (as defined herein) (an “Investment Adviser Material Adverse Effect”). The ; (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus; and (v) has made all necessary filings required of it under any applicable federal, state or local law, regulation or rule, except where the failure to make such a filing would not result in an Investment Adviser has no wholly owned subsidiariesMaterial Adverse Effect.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Management Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, Prospectus and no order of or suspension or revocation of such registration has been issued or proceedings therefor initiated orthereof initiated, or to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into, as applicable, each of this Underwriting Agreement, the Investment Management Agreement, the Organizational Agreement, and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and , (ii) the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements do not violate in all any material respects with any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (aA) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors’ the rights generally (and remedies of creditors generally, whether statutory or decisional) , and by general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (bB) with respect subject, in the case of the Investment Management Agreement, to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderthereunder and (C) except as rights to indemnity or contribution, broadly worded waivers, waivers of rights to damages or defenses, waivers of unknown or future claims, and waivers of statutory, regulatory or constitutional rights may be limited on statutory or public policy grounds.
(d) The execution None of (i) the execution, delivery and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations underthe Adviser Agreements, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation issuance and sale by the Fund of the transactions Shares as contemplated by this Underwriting Agreement; provided that no representation , the Registration Statement, the Pricing Prospectus, the Prospectus or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
Adviser Agreements and (eiii) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement any of the Adviser Agreements or performance and consummation by the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or Adviser of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the other transactions contemplated by this Agreement.
the Adviser Agreements (fA) There are no legal conflicts with or governmental proceedings pending orwill conflict with, to or results in or will result in a breach or violation of the knowledge limited partnership agreement, bylaws or similar organizational documents of the Investment Adviser, threatened (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, any agreement or instrument to which the Investment Adviser is a party or by which it is bound or to which any of the properties property or assets of the Investment Adviser is subject or (iC) other than proceedings accurately described results in all material respects or will result in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effectany violation of any law, rule or regulation, or that would not have a material adverse effect on the power order of any court, governmental instrumentality, securities exchange or ability of the Investment Adviser to perform its obligations under this Agreement association or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunalsarbitrator, whether foreign or domestic, applicable to own and use its assets and to conduct its business the Investment Adviser or having jurisdiction over the Investment Adviser’s properties, except in the manner described case of clauses (B) or (C), where such conflict, breach, default or violation, either individually or in the Registration Statement and the Prospectusaggregate, except to the extent that the failure to obtain does not or file the foregoing would not result in an Investment Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(ie) The Investment Advisory Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not are in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such agreements.
(f) No consent, approval, authorization, notification or order of, or qualification with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, whether foreign or domestic, is required by the Investment Adviser under such documentfor the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Prospectus, except (i) such as have been obtained and such as may be required (and shall be obtained prior to commencement of the extent that transaction contemplated by this Underwriting Agreement) under the Securities Act, the Exchange Act, the Investment Company Act or the Advisers Act, (ii) such default as may be required by the NYSE, FINRA or under state securities or “blue sky” laws, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement, or (iii) where the failure to obtain such consent, approval, authorization, notification or order does not or would not have result in an Investment Adviser Material Adverse Effect.
(jg) None The description of the Investment Adviser norand its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(h) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending or, to its the best of the Investment Adviser’s knowledge, any threatened against the Investment Adviser which (i) if determined adversely would result in an Investment Adviser Material Adverse Effect, or (ii) is of its respective affiliatesa character required to be described in the Registration Statement, the Pricing Prospectus or the Prospectus that is not so described.
(i) Except for stabilization transactions conducted by the Underwriters, and except for the issuance or purchase of 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 Pricing Prospectus or the Prospectus, the Investment Adviser has takennot taken and will not take, directly or indirectly, any action designed or which constitutes or is designed might be reasonably expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws, (ii) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any security compensation for soliciting purchases of, Shares of the Fund (except pursuant to facilitate this Agreement) and (iii) will not, until the sale or resale completion of the distribution (within the meaning of the anti-manipulation rules under the Exchange Act) of the Shares, sell, bid for or purchase, pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Fund (except pursuant to this Agreement); provided that any action in connection with the Fund’s Dividend Reinvestment Plan will not be deemed to be within the terms of this Section 4(i). For the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Adviser shall be deemed to be an action taken, directly or indirectly, by the Investment Adviser for purposes of this Section 4(i).
(j) In the event that the Fund or the Investment Adviser has made available any Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to constitute a bona fide electronic road show, the Investment Adviser has installed and maintained pre-qualification and password-protection or similar procedures which are reasonably designed and expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(k) The operations Investment Adviser will direct the proceeds of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge offering of the Investment Adviser, threatenedShares in such a manner as to cause the Fund to comply with the requirements of Subchapter M of the Code.
(l) None The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser nor, to and its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithsupervised persons.
(m) None The Investment Adviser owns or possesses, or can acquire on reasonable terms, the Intellectual Property necessary to carry on the business operated by the Investment Adviser, and the Investment Adviser has not received any notice or is not otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Investment Adviser norand which, to its knowledgeindividually or in the aggregate, any directorif subject of an unfavorable decision, officerruling or finding, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFACwould result in a Material Adverse Effect.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Management Agreement are executed in accordance with its management’s general or specific authorization authorization; and (ii) access to the CompanyFund’s assets is permitted only in accordance with its management’s general or specific authorization.
(o) Neither the Investment Adviser nor any director or officer of the Investment Adviser, nor, to the best of the Investment Adviser’s knowledge, any of the Investment Adviser’s subsidiaries, employees, agents or representatives, have taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of anything of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and to the extent required by applicable law, the Investment Adviser and its subsidiaries have policies and procedures reasonably designed to comply with applicable anti-corruption laws including, without limitation, the FCPA, and will continue to maintain these policies and procedures reasonably designed to comply with such laws.
(p) The Investment Adviser has filed, or will timely file, with the National Futures Association (“NFA”) a notice of eligibility for relief from inclusion within the definition of a commodity pool operator pursuant to Section 4.5 of the general regulations under the Commodity Exchange Act, as amended (“CEA”), with respect to the Fund.
(q) To the extent required by applicable law, the Investment Adviser and its subsidiaries have policies and procedures reasonably designed to comply with all applicable Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser or any of its subsidiaries with respect to any applicable Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, or threatened.
(r) Neither the Investment Adviser nor any director or officer of the Investment Adviser nor, to the best of the Investment Adviser’s knowledge, any of the Investment Adviser’s subsidiaries, employees, agents or representatives, is currently subject to any U.S. sanctions administered by OFAC; and the Investment Adviser will not directly or indirectly direct the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity for the purpose of financing the activities or business of any person or in any country or territory that, at the time of such financing, is subject to any U.S. sanctions administered by OFAC. Any For the avoidance of doubt, no Underwriter is an agent, affiliate or representative of the Investment Adviser for purposes of the above representations and warranties. In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (DoubleLine Yield Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser has been duly formed and organized, is validly existing as a limited liability company, in good standing under the laws of the State jurisdiction of California with its organization, has the power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) could reasonably be reasonably expected expected, singly or in the aggregate, to have a material adverse effect on the conditionInvestment Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) could reasonably be expected, singly or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), or on the prospects, earnings, business business, operations or operations properties of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the (“Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by each of the Investment Advisory AgreementRegistration Statement, Registration Statement the Time of Sale Prospectus and the Prospectus, or from acting under the Support Services Agreement, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, or threatened by the Commission.
(c) This Each of this Agreement, the Investment Advisory Agreement, the Structuring Fee Agreement and the Syndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Investment Adviser and [NAME] (the “[NAME] Fee Agreement”) and [other agreements executed by any Investment Adviser] (this Agreement, the Investment Advisory Agreement, the Support Services Agreement, the Xxxxxx Xxxxxxx Fee Agreements, the [NAME] Fee Agreement and [other agreements executed by any Investment Adviser] are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Investment Adviser. This Agreement Adviser and the Investment Advisory Agreement to which the Investment Adviser is a party comply in complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser Agreements is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereundergeneral applicability.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or under the Adviser Agreements will not conflict with, result incontravene any provision of applicable law or the operating agreement, or constitute a violation, breach of, or default under, (x) operating agreement by-laws of the Investment Adviser (y) or any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any lawAdviser, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) . No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementShares.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, or threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not not, singly or in the aggregate, have an Investment Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result not, singly or in the aggregate, have an Investment Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAdviser Agreements.
(ih) The Investment Advisory Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document.
(i) All information furnished by the Investment Adviser under for use in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such document, except to the extent that such default would information not have an Adviser Material Adverse Effectmisleading.
(j) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the Investment Adviser from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Investment Adviser which are material to the Investment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) The Investment Adviser maintains a system of internal controls designed to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(i) There has been no material unauthorized access or disclosure, or other similar compromise relating to the Investment Adviser’s information technology and computer systems, data and databases used by the Fund (collectively, “IT Systems and Data”), and (ii) the Investment Adviser has implemented controls, policies, procedures, and technological safeguards reasonably designed to maintain and protect the integrity, continuous operation, redundancy and security of its IT Systems and Data reasonably consistent in all material respects with industry standards and practices, or as required by applicable regulatory standards. The Investment Adviser is presently in material compliance with all applicable laws and regulations relating to the privacy and security of its IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(i) None of the Investment Adviser noror its affiliates, or any director, officer, or employee thereof, or, to its the Investment Adviser’s knowledge, any agent or representative of the Investment Advises or of any of its respective affiliates, has takentaken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any action which constitutes Government Official in order to influence official action, or is to any person in violation of any applicable anti-corruption laws; (ii) the Investment Adviser and its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to cause promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) the Investment Adviser will not use, directly or result inindirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation authorization of the price payment or giving of money, or anything else of value, to any person in violation of any security to facilitate the sale or resale of the Sharesapplicable anti-corruption laws.
(kn) The operations of the Investment Adviser are and have been conducted at all times in material compliance in all material respects with applicable the Anti-Money Laundering Laws Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(li) None of the Investment Adviser norAdviser, to its knowledge, or any director, officer, or employee thereof, or, to the Investment Adviser’s knowledge, any agent, employee affiliate or affiliate representative of the Investment Adviser, is an individual or entity (“Adviser Person”) that is, or is aware owned or controlled by one or more Adviser Persons that are: (A) the subject of any Sanctions, or has taken any action(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria)
(ii) The Investment Adviser will not, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person Adviser Person: (A) to fund or entityfacilitate any activities or business of or with any Adviser Person or in any country or territory that, for at the purpose time of financing such funding or facilitation, is the activities subject of Sanctions; or (B) in any person currently subject to other manner that will result in a violation of Sanctions by any U.S. sanctions administered by OFAC.Adviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise)
(niii) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance has not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that (i) transactions effectuated by it under at the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf time of the Investment Adviser and delivered to Virtu dealing or its counsel in connection with transaction is or was the offering subject of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to VirtuSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (PIMCO Dynamic Income Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a limited liability company under the laws of the State of California with the Delaware; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into each of this Agreement and Underwriting Agreement, the Investment Advisory Agreement, as the case may beSubscription Agreement, the Expense Agreement[, the Distribution Assistance Agreement] and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or its ownership or leasing of property other activity requires such qualification; and (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus; except in the cases of clauses (iii) and (iv) to the extent that the failure to be so licensed and qualified or be in good standing would or to own, possess, obtain or maintain could not reasonably be reasonably expected to have either (1) a material adverse effect on the condition, Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this Underwriting Agreement or (2) a material adverse effect on the condition (financial or otherwise, or on the prospects), earnings, business affairs, business prospects, properties, net assets or operations results of the Investment Adviser, whether or not arising from transactions in the ordinary course of business operation of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(ci) This Each Adviser Agreement has been duly authorized, executed and delivered by the Investment Adviser. This , (ii) each Adviser Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply complies in all material respects with the applicable provisions of the Acts, Investment Company Act and the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws relating to or affecting creditors’ rights generally (generally, whether statutory or decisional) , and by to general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (b) with respect except as enforcement of rights to termination under the Investment Company Act indemnity or the reasonableness contribution thereunder may be limited by federal or fairness of compensation payable thereunderstate securities laws.
(d) The Neither (i) the execution and delivery by the Investment Adviser of, and of the Adviser Agreements or the performance by the Investment Adviser of its obligations underunder any of the Adviser Agreements or performance and consummation by the Investment Adviser of the other transactions contemplated by the Adviser Agreements, nor (ii) the issuance and sale by the Fund of the Shares as contemplated by this Agreement does not conflict Underwriting Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus (A) conflicts with or will not conflict with, or results in or will result in, in a breach or constitute a violation, breach of, or default under, (x) violation of the limited liability company operating agreement of the Investment Adviser, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser (y) under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, bond, licenseinsurance or surety agreement, lease or other instrument or obligation binding upon to which the Investment Adviser that is material a party or by which it is bound or to which any of the property or assets of the Investment Adviser is subject or (zC) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic’s properties; except, except with respect to clauses (yB) or (zC), any contravention conflict, breach, violation, default or lien which would could not reasonably be expected to have neither either (i) an Adviser Material Adverse Effect or (ii1) a material adverse effect on the Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this Agreement; provided that no representation Underwriting Agreement or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu(2) an Adviser Material Adverse Effect.
(e) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit ofby, license fromany federal, state, local or qualification foreign court or registration governmental or regulatory agency, commission, board, authority or body or with any governmental body, agency or authority, self-regulatory organization organization, other non-governmental regulatory authority, securities exchange or court or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser for the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of its obligations under this Agreement all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Investment Advisory Agreement to which it is a partyProspectus, except the filing of the Prospectus on or before the second business day after the date of this Underwriting Agreement and such as have been obtained and as (i) may be required by (i) and has be obtained under the Acts, the Advisers Securities Act, the Exchange Act, the Investment Company Act or the applicable Rules and RegulationsAdvisers Act, (ii) the rules and regulations of FINRA or of may be required by the NYSE, (iii) by the FINRA or under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or by the Underwriters pursuant to this Underwriting Agreement, and (iviii) such as which the failure to obtain would could not reasonably be expected to have neither either (i) an Adviser Material Adverse Effect nor (ii1) a material adverse effect on the Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this AgreementUnderwriting Agreement or (2) an Adviser Material Adverse Effect.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act in all material respects and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no legal action, suit, claim, inquiry, investigation or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or brought by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, whether foreign or domestic now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described if determined adversely could reasonably be expected to result in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus Effect or (ii) that are is of a character required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectas required.
(h) The Except for actions taken by the Underwriters, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed or which constitutes or is designed might be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(i) The Investment Adviser has not made available any security to facilitate Road Show Materials or promotional materials (other than the sale or resale Sales Materials) by means of an Internet web site.
(j) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the SharesAdvisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(k) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurances that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) Neither the Investment Adviser nor, to the knowledge of the Investment Adviser, after reasonable inquiry, any other person associated with or acting on behalf of the Investment Adviser including, without limitation, any trustee, officer, agent or employee of the Investment Adviser, has not, directly or indirectly, while acting on behalf of the Investment Adviser (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA; or (iv) made any other unlawful payment.
(m) The operations of the Investment Adviser and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(ln) None of Neither the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate the knowledge of the Investment Adviser is aware of or has taken any actionAdviser, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeafter reasonable inquiry, any member, director, trustee, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC OFAC; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares pursuant to this Underwriting Agreement shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Angel Oak Dynamic Financial Strategies Income Term Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser has been duly formed and incorporated, is validly existing as a corporation in good standing under the laws of the State jurisdiction of California with its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory Agreement, Registration Statement and the Time of Sale Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement and the Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviser. This ; the Marketing and Structuring Fee Agreement (the "MARKETING AND STRUCTURING FEE AGREEMENT") dated the date hereof between MSIM and Xxxxxx Xxxxxxx & Co. Incorporated has been duly authorized, executed and delivered by MSIM; and each of this Agreement, the Investment Advisory Agreement to which and the Investment Adviser is a party comply in Marketing and Structuring Fee Agreement (collectively, the "ADVISER AGREEMENTS") complies with all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser Agreements is a party represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws relating to or affecting creditors’ ' rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereundergeneral applicability.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or under the Adviser Agreements will not conflict with, result in, or constitute a violation, breach of, or default under, contravene (x) operating agreement any provision of applicable law or the articles of incorporation or bylaws of the Investment Adviser (y) or any agreement, indenture, note, bond, license, lease agreement or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser Adviser, or (zy) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; , except, with respect to clauses this clause (y) or (z), any such foreign judgment, order or decree the contravention of which would neither have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect or (ii) a material an adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation Agreement or warranty is made with respect to compliance with the laws of on any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) Underwriter. No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations or the Exchange Act Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would neither have neither (i) an a material adverse effect on the Fund or the Investment Adviser Material Adverse Effect nor or (ii) a material an adverse effect on the consummation of the transactions contemplated by this AgreementAgreement or on any Underwriter.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the Investment Adviser, or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Time of Sale Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an have a material adverse effect on the Investment Adviser Material Adverse Effector on the Fund.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAdviser Agreements.
(ih) The Investment Advisory Agreement is in full force and effect and neither the Fund nor the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document. The Adviser Agreements conform in all material respects to the descriptions thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(i) All information furnished by the Investment Adviser under such document, except to for use in the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result inRegistration Statement, the stabilization or manipulation Time of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Sale Prospectus and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPAProspectus, including, without limitation, making use the description of the mails Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any means or instrumentality of interstate commerce corruptly material fact necessary to make such information not misleading (in furtherance of an offer, payment, promise to pay or authorization case of the payment Time of any moneySale Prospectus and the Prospectus, or other property, gift, promise to give, or authorization in the light of the giving of anything of value to any “foreign official” (as such term circumstances under which it is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithcommunicated).
(mj) None There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Investment Adviser norfrom that set forth in the Time of Sale Prospectus, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) there have been no transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty entered into by the Investment Adviser as which are material to the matters covered therein to VirtuInvestment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Morgan Stanley Emerging Markets Domestic Debt Fund, Inc.)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State Commonwealth of California Massachusetts, in the case of the Investment Adviser with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, the [Structuring Fee Agreement], and the Additional Compensation Agreement, to which the Investment Adviser is a party (collectively, the "Adviser Agreements"), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation New York Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) Except as disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment any Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws. In the event that the Fund or resale of the Shares.
(k) The operations of the Investment Adviser are makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding registered representatives thereof by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed which will effectively prohibit access to ensure, such promotional materials by persons other than qualified broker-dealers and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeregistered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the 9 Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, the Shareholder Servicing Agreement, and the Additional Compensation Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Investment Adviser Agreement, result inas the case may be, except such as (i) have been obtained under the Act, the Investment Company Act, or constitute a violationthe Advisers Act, breach ofand (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, or default under, in connection with the purchase and distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement. 10
(xf) operating agreement The description of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon and its business and the Investment Adviser that is material statements attributable to the Investment Adviser or (z) any law, rule or regulation applicable to in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Adviser or Company Act and do not contain any judgment, order or decree untrue statement of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on fact or omit to state any material fact required to be stated therein or necessary in order to make the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtustatements therein not misleading.
(eg) No consentThere is no action, approvalsuit or proceeding before or by any court, authorizationcommission, order or permit of, license from, or qualification or registration with any governmental regulatory body, administrative agency or authorityother governmental agency or body, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The any Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale Common Shares in violation of applicable federal securities laws. In the event that the Fund or resale of the Shares.
(k) The operations of the Investment Adviser are makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding registered representatives thereof by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Senior Floating Rate Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing in good standing under the laws of the State of California with the power and authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuVxxxx.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Samples: Atm Sales Agreement (Flaherty & Crumrine Total Return Fund Inc)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and represents, warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsManager that:
(a) The Investment Adviser has been duly formed organized and is validly existing in good standing under the laws of its jurisdiction of formation, is duly qualified to do business in each jurisdiction in which its ownership or lease of property or the State conduct of California with its business as described in the Basic Prospectus or the Prospectus requires such qualification (except where the failure to so qualify or to be validly existing would not reasonably be expected to have a Material Adverse Effect), and has the power and authority to own or hold its property properties and to conduct its business as described in the Registration Statement and Basic Prospectus or the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesProspectus.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act, Act and there does not exist any proceeding or any facts or circumstances the existence of which could lead to any proceeding which could affect adversely the registration or good standing of the Investment Adviser with the Commission. The Investment Adviser is not prohibited by the Investment Advisers Act or the Investment Company 1940 Act from acting under the Second Amended and Restated Investment Advisory, dated as an investment adviser to of December 6, 2011 (the Company “Advisory Agreement”) as contemplated by the Investment Advisory Agreement, Registration Statement and Basic Prospectus or the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement has and the Advisory Agreement have been duly authorized, executed and delivered by the Investment Adviser. This Agreement , and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a constitute valid and legally binding agreement agreements of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderprinciples.
(d) The execution None of the execution, delivery and delivery by the Investment Adviser ofperformance of this Agreement, and the performance by of the Investment Adviser Advisory Agreement or the consummation of its obligations under, this Agreement does not conflict with or the transactions contemplated hereby and thereby will not conflict with, result in, in any breach or violation of or constitute a violationdefault under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or default give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, (x) operating agreement charge or encumbrance on any property or assets of the Investment Adviser Adviser) or pursuant to (yi) the organizational documents of the Investment Adviser, (ii) any agreementfederal, indenturestate, notelocal or foreign law, bondregulation or rule, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (ziii) any law, rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (iv) any decree, judgment or order applicable to the Investment Adviser or any judgmentof its properties; and except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the distribution of the Shares by the Manager, no consent, approval, authorization or order of, or decree of filing or registration with, any such court or governmental body, agency or court having jurisdiction over body is required for the execution, delivery and performance of this Agreement by the Investment Adviser, whether foreign the performance of the Advisory Agreement by the Investment Adviser or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated hereby and thereby by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Basic Prospectus and the Prospectus and by under this Agreement and the Advisory Agreement.
(f) The Investment Advisory Agreement Adviser maintains insurance covering its properties, operations, personnel and businesses as the Investment Adviser reasonably deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Investment Adviser and its business; all such insurance is fully in force on the date hereof and will be fully in force at the time of purchase and any additional time of purchase; the Investment Adviser has no reason to believe that it will not be able to renew any such insurance as and when such insurance expires.
(g) The description of the Investment Adviser and its business in the Basic Prospectus and the Prospectus conforms as of the date hereof as of the time of purchase, each additional time of purchase, 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 Shares, will comply, in all material respects with the provisions of the Securities Act and the 1940 Act, and such description did not as of the date hereof and will not as of the time of purchase, each additional time of purchase, 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 Shares contain an untrue statement of a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) There are no legal or governmental proceedings pending to which it the Investment Adviser is a partyparty or of which any property or assets of the Investment Adviser is the subject which is reasonably likely to be determined adversely to the Investment Adviser and, if determined adversely to the Investment Adviser, would be reasonably likely to have a Material Adverse Effect; and to the best of the Investment Adviser’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(i) The Investment Advisory Agreement Since the respective dates as of which information is given in full force and effect the Basic Prospectus and the Investment Adviser is not in default thereunderProspectus, and no event has occurred which with except as may otherwise be disclosed in the passage of time Basic Prospectus, the Prospectus or the giving of notice or both would constitute a default Final Term Sheet, if any, there have been no transactions entered into by the Investment Adviser under such document, except which are material to the extent that such default would not have an Investment Adviser Material Adverse Effectother than in the ordinary course of its business.
(j) None This Agreement and the Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act and the Investment Advisers Act.
(k) The Investment Adviser noris not, and after giving effect to its knowledgethe offering and sale of the Shares, any of its respective affiliateswill not be, a “registered management investment company” or an entity “controlled” by a “registered management investment company,” as such terms are defined by the 1940 Act;
(l) The Investment Adviser has not taken, directly or indirectly, any action designed, or which constitutes has constituted or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to constitute, cause or result in, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(km) The Investment Adviser is not in breach or violation of or in default under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its organizational documents, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or affected, (ii) any federal, state, local or foreign law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (vi) any decree, judgment or order applicable to it or any of its properties.
(n) Neither the Investment Adviser, nor any director, officer, agent, employee or other person associated with or acting on behalf of the Investment Adviser, has (i) used any funds of the Company or the Investment Adviser for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from any funds of the Company or the Investment Adviser, (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(o) The operations of the Investment Adviser are is, and have been conducted at all times times, in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws Laws; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator or non-governmental authority involving the Company or the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser’s knowledge, threatened.
(lp) None of Neither the Investment Adviser nor, to its knowledgethe knowledge of the Investment Adviser, any director, officer, agent, employee or affiliate of the Investment Adviser is aware is, currently subject to any sanctions administered or enforced by the Office of or has taken any action, directly or indirectly, that would result in a violation by such persons Foreign Assets Control of the FCPAU.S. Treasury Department, includingthe United Nations Security Council, without limitationthe European Union, making use of the mails Her Majesty’s Treasury or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” relevant sanctions authority.
(as such term is defined in the FCPAq) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, Neither the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None nor any employee or agent of the Investment Adviser nor, to its knowledge, has made any director, officer, agent, employee payment of funds of the Company or affiliate of the Investment Adviser or received or retained any funds, which payment, receipt or retention of funds is currently subject of a character required to be disclosed in the Registration Statement, the Basic Prospectus or the Prospectus which is not so disclosed. In addition, any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Manager or its counsel for the Manager in connection with the offering of the Shares contemplated hereby shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtuthe Manager.
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees agree with Virtu each of the Underwriters as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of California Delaware, with the full power and authority to own its property and to conduct its business as described in the Registration Statement and the Time of Sale Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, Agreement and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would could not reasonably be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by the Investment Advisory AgreementRegistration Statement, Registration Statement the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Each of this Agreement and the Investment Advisory Agreement to which has been duly authorized by the Investment Adviser is a party comply in all material respects Adviser. The Investment Advisory Agreement complies with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming The Investment Advisory Agreement has been duly executed and delivered by the Investment Adviser and (assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party ) represents a valid and binding agreement of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its terms, except (ai) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, Enforceability Exceptions and (bii) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, under this Agreement does do not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) the limited liability company operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser Adviser, that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, Adviser whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would individually or in the aggregate could not reasonably be expected to have neither either (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtuany Underwriter.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser prior to the Closing Date for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyAgreement, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of the FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Time of Sale Prospectus and proceedings that would could not have an Adviser Material Adverse Effect, or that would not reasonably be expected to have a material adverse effect on the Investment Adviser or on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement Statement, the Time of Sale Prospectuses or the Prospectus and are not so described.
(g) There are no contracts or documents which are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus (or the documents incorporated by reference therein) or to be filed as exhibits thereto by the Securities Act or by the Rules and Regulations which have not been so described and filed as required.
(h) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would could not reasonably be expected to result in an Adviser Material Adverse Effect.
(hi) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Time of Sale Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyAgreement.
(ij) The Investment Advisory Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment Adviser, any other party to the Investment Advisory Agreement is not in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(jk) None All information furnished by the Investment Adviser for use in the Registration Statement, the Time of Sale Prospectus and Prospectus, including, without limitation, the description of the Investment Adviser nor(the “Investment Adviser Information”) does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading (in the case of the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which such information is provided.
(l) There has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Investment Adviser from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Investment Adviser which are material to the Investment Adviser other than those in the ordinary course of its knowledge, business or as described in the Time of Sale Prospectus.
(m) Neither the Investment Adviser nor any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(kn) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(lo) None The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) The Investment Adviser acknowledges that the only written information that the Underwriters have provided to the Fund expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus is the Underwriters’ Information.
(q) Neither the Investment Adviser nor, to its knowledgethe knowledge of the Investment Adviser, any director, officer, agent, employee or affiliate of the Investment Fund or the Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Investment Adviser, and to its knowledgethe knowledge of the Fund, the Investment Adviser its and the affiliates of the Fund and the Investment Adviser have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(mr) None of Neither the Investment Adviser nor, to its knowledgethe knowledge of the Investment Adviser, any director, officer, agent, employee or affiliate of the Investment Adviser Fund or the Adviser, is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ns) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed covenants that, in accordance connection with its management’s general or specific authorization and (ii) access any repurchase offer made pursuant to the Company’s assets is permitted only repurchase policy and Rule 23 c-3(b) of the rules promulgated under the Investment Company Act, it will not recommend to the Fund’s Board to redeem shares of the Common Stock in accordance with its managementexcess of 5% of the Fund’s general or specific authorizationoutstanding shares of Common Stock, unless the facts and circumstances in existence at such time require the Adviser to do so. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu the Representative or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (RiverNorth Marketplace Lending Corp)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The the Investment Adviser has been duly formed organized and is validly existing in good standing as a limited liability company under the laws of the State of California Delaware, with the full power and authority to own conduct all of the activities conducted by it, to own, lease or operate its property properties and to conduct its business as described in the Registration Statement Statement, the Pre-Pricing Prospectuses and the Prospectus and enter into this Agreement and Prospectus;
(b) the Investment Advisory Agreement, as the case may be, and Adviser is duly qualified to transact do business and is in good standing in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not be reasonably expected to have a material adverse effect on the conditionnot, financial individually or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of aggregate, result in a Material Adverse Effect;
(c) the Investment Adviser or under this Agreement is (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(bi) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company as contemplated by the Investment Advisory and Management Agreement, the Registration Statement Statement, the Pre-Pricing Prospectuses and the Prospectus, ;
(d) this Agreement and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Advisory and Management Agreement has have been duly and validly authorized, executed and delivered by the Investment Adviser. This ; this Agreement and the Investment Advisory and Management Agreement to which the Investment Adviser is a party comply in all material respects with do not violate any of the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.Advisers Act;
(de) The neither (i) the execution and delivery by the Investment Adviser of, of this Agreement or the Investment Advisory and Management Agreement nor (ii) the performance consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under, this Agreement does not conflict with herein or therein will not conflict with, result in, in any breach or violation of or constitute a violationdefault under (or constitute any event which, with notice, lapse of time or both, would reasonably be expected to result in any breach or violation of, constitute a default under or default give the holder of any indebtedness (or a person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, (x) operating agreement charge or encumbrance on any property or assets of the Investment Adviser pursuant to) (yA) the organizational documents of the Investment Adviser, (B) any agreementmaterial agreement to which it is a party or by which any of its properties may be bound or affected, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (zC) any federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (E) any decree, judgment or order applicable to the Investment Adviser or its properties;
(f) no approval, authorization, consent or order of or filing with any judgmentfederal, order state, local or decree of any foreign governmental or regulatory commission, board, body, agency authority or court having jurisdiction over the Investment Adviseragency, whether foreign or domestic; except, of or with respect to clauses (y) any self-regulatory organization or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on other non-governmental regulatory authority is required for the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license fromin, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyand Management Agreement, except (i) such as have been obtained and under the Act, the Investment Company Act, or the Advisers Act, (ii) such as may be required by (i) the ActsNYSE or under state securities or blue sky laws, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by to the securities extent such failures to procure such approval, authorization, consent or “blue sky laws” of order, individually or in the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain aggregate, would not have neither (i) an Adviser a Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.Effect;
(fg) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties description of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects and its business and the statements attributable to the Investment Adviser in the Registration Statement Statement, the Pre- Pricing Prospectuses and the Prospectus comply with the requirements of the Act and proceedings the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(h) except as disclosed in the Registration Statement, the Pre-Pricing Prospectuses and the Prospectus, 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 threatened against or affecting the Investment Adviser of a nature required to be disclosed in the Registration Statement, the Pre-Pricing Prospectuses or Prospectus or that would not have an Adviser might result in any Material Adverse Effect, Effect or that would not have a material adverse effect on affect the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.and Management Agreement; and
(i) The Investment Advisory Agreement except for stabilization activities conducted by the Underwriters, Share repurchases and the issuance or purchase of Shares pursuant to the Company's Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in full force and effect and accordance with the policies of the Company as set forth in the Prospectus, the Investment Adviser is has not in default thereunder, taken and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would will not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale shares of the Shares.
(k) The operations Common Stock in violation of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledgefederal securities laws. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each Applicable the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State The Commonwealth of California Massachusetts, with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in ’s ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement, the Pricing Prospectus and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Shareholder Servicing Agreement, the Marketing and Structuring Fee Agreement, the Citi Structuring Fee Agreement, the Merrill Structuring Fee Agreement and the Wachovia Structuring Fee Agreement, to which the Investment Adviser is a party (collectively, the “Adviser Agreements”), and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, (x) the Declaration of Trust or By-Laws of the Investment Adviser, (y) any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against is bound (which conflict of breach, either individually or in the Investment Adviser in accordance with its termsaggregate, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of would have a material adverse effect upon the Investment Adviser’s obligations thereunder may be limited by bankruptcy), fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Time for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the Exchange Act, NYSE or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as otherwise disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement, Pricing Prospectus or to which Prospectus or that if determined adversely would result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment any Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Except for stabilization activities 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 Pricing Prospectus and the Prospectus, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(ki) The operations of In the event that the Fund or the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit has made available any Road Show Materials or proceeding promotional materials (other than the Sales Materials) by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Internet web site or similar electronic means such as to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgeconstitute a bona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, and which are designed and reasonably expected to continue effectively prohibit access to ensure, continued compliance therewithsuch Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(nj) The Investment Adviser maintains a system has adopted and implemented written policies and procedures under Rule 206(4)-7 of internal controls sufficient the Advisers Act reasonably designed to provide reasonable assurance that (i) transactions effectuated prevent violation of the Advisers Act by it under the Investment Advisory Agreement are executed in accordance with Adviser and its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorizationsupervised persons. Any In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance National Municipal Opportunities Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a limited liability company under the laws of the State of California with the Delaware; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into each of this Agreement and Underwriting Agreement, the Investment Advisory Agreement, as the case may beSubscription Agreement, the Expense Agreement, the Distribution Assistance Agreement, [insert other material Investment Adviser agreements] and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or its ownership or leasing of property other activity requires such qualification; and (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus; except in the cases of clauses (iii) and (iv) to the extent that the failure to be so licensed and qualified or be in good standing would or to own, possess, obtain or maintain could not reasonably be reasonably expected to have either (1) a material adverse effect on the condition, Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this Underwriting Agreement or (2) a material adverse effect on the condition (financial or otherwise, or on the prospects), earnings, business affairs, business prospects, properties, net assets or operations results of the Investment Adviser, whether or not arising from transactions in the ordinary course of business operation of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(ci) This Each Adviser Agreement has been duly authorized, executed and delivered by the Investment Adviser. This , (ii) each Adviser Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply complies in all material respects with the applicable provisions of the Acts, Investment Company Act and the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws relating to or affecting creditors’ rights generally (generally, whether statutory or decisional) , and by to general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (b) with respect except as enforcement of rights to termination under the Investment Company Act indemnity or the reasonableness contribution thereunder may be limited by federal or fairness of compensation payable thereunderstate securities laws.
(d) The Neither (i) the execution and delivery by the Investment Adviser of, and of the Adviser Agreements or the performance by the Investment Adviser of its obligations underunder any of the Adviser Agreements or performance and consummation by the Investment Adviser of the other transactions contemplated by the Adviser Agreements, nor (ii) the issuance and sale by the Fund of the Shares as contemplated by this Agreement does not conflict Underwriting Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus (A) conflicts with or will not conflict with, or results in or will result in, in a breach or constitute a violation, breach of, or default under, (x) violation of the limited liability company operating agreement of the Investment Adviser, (B) conflicts with or will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser (y) under the terms and provisions of any agreement, indenture, mortgage, loan agreement, note, bond, licenseinsurance or surety agreement, lease or other instrument or obligation binding upon to which the Investment Adviser that is material a party or by which it is bound or to which any of the property or assets of the Investment Adviser is subject or (zC) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic’s properties; except, except with respect to clauses (yB) or (zC), any contravention conflict, breach, violation, default or lien which would could not reasonably be expected to have neither either (i) an Adviser Material Adverse Effect or (ii1) a material adverse effect on the Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this Agreement; provided that no representation Underwriting Agreement or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu(2) an Adviser Material Adverse Effect.
(e) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit ofby, license fromany federal, state, local or qualification foreign court or registration governmental or regulatory agency, commission, board, authority or body or with any governmental body, agency or authority, self-regulatory organization organization, other non-governmental regulatory authority, securities exchange or court or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser for the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of its obligations under this Agreement all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Investment Advisory Agreement to which it is a partyProspectus, except the filing of the Prospectus on or before the second business day after the date of this Underwriting Agreement and such as have been obtained and as (i) may be required by (i) and has be obtained under the Acts, the Advisers Securities Act, the Exchange Act, the Investment Company Act or the applicable Rules and RegulationsAdvisers Act, (ii) the rules and regulations of FINRA or of may be required by the NYSE, (iii) by the FINRA or under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or by the Underwriters pursuant to this Underwriting Agreement, and (iviii) such as which the failure to obtain would could not reasonably be expected to have neither either (i) an Adviser Material Adverse Effect nor (ii1) a material adverse effect on the Investment Adviser’s performance of the Investment Advisory Agreement or this Underwriting Agreement or the consummation of any of the transactions contemplated by this AgreementUnderwriting Agreement or (2) an Adviser Material Adverse Effect.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act in all material respects and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no legal action, suit, claim, inquiry, investigation or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or brought by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, whether foreign or domestic now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described if determined adversely could reasonably be expected to result in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus Effect or (ii) that are is of a character required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectas required.
(h) The Except for actions taken by the Underwriters, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed or which constitutes or is designed might be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(i) The Investment Adviser has not made available any security to facilitate Road Show Materials or promotional materials (other than the sale or resale Sales Materials) by means of an Internet web site.
(j) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the SharesAdvisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(k) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurances that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) Neither the Investment Adviser nor, to the knowledge of the Investment Adviser, after reasonable inquiry, any other person associated with or acting on behalf of the Investment Adviser including, without limitation, any trustee, officer, agent or employee of the Investment Adviser, has not, directly or indirectly, while acting on behalf of the Investment Adviser (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the FCPA; or (iv) made any other unlawful payment.
(m) The operations of the Investment Adviser and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(ln) None of Neither the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate the knowledge of the Investment Adviser is aware of or has taken any actionAdviser, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeafter reasonable inquiry, any member, director, trustee, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC OFAC; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any In addition, any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares pursuant to this Underwriting Agreement shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Angel Oak Financial Strategies Income Term Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a corporation under the laws of the State of California Delaware with the full power and authority to own perform its property and to conduct its business as described in obligations under this Agreement, the Registration Statement and Shareholder Servicing Agreement, the Prospectus and enter into this Investment Advisory Agreement and the Investment Advisory Additional Compensation Agreement, as and the case may be, and Investment Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure it is required to be so qualified or be in good standing would not be reasonably expected order to have a material adverse effect on perform its obligations under this Agreement, the condition, financial or otherwise, or on the prospects, earnings, business or operations of Shareholder Servicing Agreement the Investment Adviser, whether or not arising from transactions in Advisory Agreement and the ordinary course of business of Additional Compensation Agreement; and the Investment Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to perform its obligations under this Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesand the Additional Compensation Agreement.
(b) The Investment Adviser is (i) registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Advisory Agreement and the Additional Compensation Agreement being referred to as the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply in all material respects with Agreements violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Articles of Incorporation or other organizational documents of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result inbound, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser regulation, or any judgment, order or decree of any court, governmental bodyinstrumentality, agency securities exchange or court having jurisdiction over the Investment Adviserassociation or arbitrator, whether foreign or domestic; except, with respect applicable to clauses (y) the Investment Adviser, except in each case for such conflicts or (z)breaches which do not, any contravention which would either alone or in the aggregate, have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on upon the consummation of Investment Adviser's ability to perform its obligations under the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuInvestment Adviser Agreements.
(e) No consent, approval, authorizationauthorization or order of any court, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization body or court securities exchange or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Adviser of its obligations under this Agreement or under, any Investment Adviser Agreement, as the Investment Advisory Agreement to which it is a partycase may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and as (ii) may be required by (i) the Acts, the Advisers Act, the New York Stock Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the under state securities or “"blue sky sky" laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares or (iv) such as which by the failure Underwriters pursuant to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business, and the statements attributable to the Investment Adviser, in the Registration Statement and the Prospectus comply in all material respects with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are nature required to be described disclosed in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Except for stabilization activities 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 Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale Common Shares in violation of the Sharesapplicable federal securities laws.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ni) The Investment Adviser maintains a system has not made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general an Internet web site or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtusimilar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Municipal High Income Trust)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, and the Shareholder Servicing Agreement (collectively, the "Investment Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which ; none of the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Investment Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Investment Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Investment Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the any Investment Adviser (y) any agreementAgreement, indentureas the case may be, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation American Stock Exchange or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) There are is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The any Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The Investment Adviser has In the financial resources available to it necessary for event that the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and Fund or the Investment Adviser is not in default thereunder, makes available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and no event has occurred which with the passage of time or the giving of notice or both would constitute a default registered representatives thereof by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Limited Duration Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The the Investment Adviser has been duly formed organized and is validly existing in good standing as a limited liability company under the laws of the State of California Delaware, with the full power and authority to own conduct all of the activities conducted by it, to own, lease or operate its property properties and to conduct its business as described in the Registration Statement Statement, each Pre-Pricing Prospectus and the Prospectus and enter into this Agreement and Prospectus;
(b) the Investment Advisory Agreement, as the case may be, and Adviser is duly qualified to transact do business and is in good standing in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not be reasonably expected to have a material adverse effect on the conditionnot, financial individually or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of aggregate, result in a Material Adverse Effect;
(c) the Investment Adviser or under this Agreement is (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(bi) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company as contemplated by the Investment Advisory and Management Agreement, the Registration Statement Statement, the Pre-Pricing Prospectuses and the Prospectus, ;
(d) this Agreement and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Advisory and Management Agreement has have been duly and validly authorized, executed and delivered by the Investment Adviser. This ; this Agreement and the Investment Advisory and Management Agreement to which the Investment Adviser is a party comply in all material respects with do not violate any of the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.Advisers Act;
(de) The neither (i) the execution and delivery by the Investment Adviser of, of this Agreement or the Investment Advisory and Management Agreement nor (ii) the performance consummation by the Investment Adviser of the transactions contemplated thereby, or the performance of its obligations under, this Agreement does not conflict with herein or therein will not conflict with, result in, in any breach or violation of or constitute a violationdefault under (or constitute any event which, with notice, lapse of time or both, would reasonably be expected to result in any breach or violation of, constitute a default under or default give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) or result in the creation or imposition of a lien, (x) operating agreement charge or encumbrance on any property or assets of the Investment Adviser pursuant to (yA) the organizational documents of the Investment Adviser, (B) any agreementmaterial agreement to which it is a party or by which any of its properties may be bound or affected, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (zC) any federal, state, local or foreign law, regulation or rule, (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (E) any decree, judgment or order applicable to the Investment Adviser or its properties;
(f) no approval, authorization, consent or order of or filing with any judgmentfederal, order state, local or decree of any foreign governmental or regulatory commission, board, body, agency authority or court having jurisdiction over the Investment Adviseragency, whether foreign or domestic; except, of or with respect to clauses (y) any self-regulatory organization or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on other non-governmental regulatory authority is required for the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license fromin, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyand Management Agreement, except (i) such as have been obtained and under the Act, the Investment Company Act, or the Advisers Act, (ii) such as may be required by (i) the ActsNYSE or under state securities or blue sky laws, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by to the securities extent such failures to procure such approval, authorization, consent or “blue sky laws” of order, individually or in the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain aggregate, would not have neither (i) an Adviser a Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.Effect;
(fg) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties description of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects and its business and the statements attributable to the Investment Adviser in the Registration Statement Statement, each Pre-Pricing Prospectus and the Prospectus comply with the requirements of the Act and proceedings the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(h) except as disclosed in the Registration Statement, each Pre-Pricing Prospectus and the Prospectus, 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 threatened against or affecting the Investment Adviser of a nature required to be disclosed in the Registration Statement, any Pre-Pricing Prospectuses or Prospectus or that would not have an Adviser might result in any Material Adverse Effect, Effect or that would not have a material adverse effect on affect the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.and Management Agreement; and
(i) The Investment Advisory Agreement except for stabilization activities conducted by the Underwriters and the issuance or purchase of Shares pursuant to the Company’s Dividend Reinvestment Plan effected following the date on which the distribution of the Shares is completed in full force and effect and accordance with the policies of the Company as set forth in the Prospectus, the Investment Adviser is has not in default thereunder, taken and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would will not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed, or which constitutes or is designed might-reasonably be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale shares of the Shares.
(k) The operations Common Stock in violation of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledgefederal securities laws. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser has been is a corporation duly formed organized and is validly existing in good standing under the laws of the State of California Delaware, with the full corporate power and authority to own own, lease and operate its property properties and to conduct its business as described in the Registration Statement and the Prospectus (and enter into this Agreement and the Investment Advisory Agreement, as the case may be, any amendment or supplement to either of them) and is duly registered and qualified to transact conduct business and is in good standing in each jurisdiction in which or place where the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure so to be so qualified register or be in good standing to qualify would not be reasonably expected to have a material material, adverse effect on the condition, condition (financial or otherwiseother), business, properties, net assets or on the prospects, earnings, business or results of operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser to under the Company Management Agreement for the Fund as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension Prospectus (or revocation of such registration has been issued any amendment or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commissionsupplement thereto).
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the The Investment Adviser is a party comply in all material respects with has full power and authority to enter into the applicable provisions of Management Agreement; the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of and the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Management Agreement have been duly and validly authorized by the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would and this Agreement and the Management Agreement have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained been duly executed and delivered by the Investment Adviser for and constitute the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained valid and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge legally binding agreements of the Investment Adviser, threatened to which enforceable against the Investment Adviser is a party 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 which any of the properties qualification that the enforceability of the Investment Adviser is subject (i) Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other than proceedings accurately described in all material respects in the Registration Statement laws relating to or affecting creditors' rights generally and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so describedgeneral equitable principles.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(hd) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and by under this Agreement and the Investment Advisory Agreement to which it is a partyManagement Agreement.
(ie) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None description of the Investment Adviser norand its business, and the statements attributable to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Adviser, in the Registration Statement and have been conducted at all times in compliance the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with applicable Money Laundering Laws the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is proceedings pending or, to the knowledge of the Investment Adviser, threatenedthreatened against the Investment Adviser or to which any of its properties is 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 or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Investment Adviser or that reasonably should have a material, adverse effect on the ability of the Investment Adviser to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (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 or business prospects of the Investment Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Investment Adviser which are material to the Investment Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) The Investment Adviser 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; the Investment Adviser 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 Investment Adviser under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement, nor the consummation by the Investment Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, 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 (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 or a default under, the Certificate of Incorporation or By-Laws of the Investment Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Investment Adviser 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 Investment Adviser 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 Investment Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Investment Adviser is not aware of any such action taken or to be taken by any affiliates of the Investment Adviser.
(l) None of In the event that the Fund or the Investment Adviser nor, to its knowledge, makes available any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation promotional materials intended for use only by such persons of the FCPA, including, without limitation, making use of the mails or any qualified broker-dealers and registered representatives thereof by means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay Internet web site or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgesimilar electronic means, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed such promotional materials by or on behalf of the Investment Adviser persons other than qualified broker-dealers and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virturegistered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Calamos Convertible & High Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as each of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsUnderwriters that:
(a) The Investment Adviser is validly existing as a Delaware limited liability company and has been duly formed organized and is validly existing in good standing under the laws of the State jurisdiction of California with its organization, has the power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) could reasonably be reasonably expected expected, singly or in the aggregate, to have a material adverse effect on the conditionInvestment Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) could reasonably be expected, singly or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), or on the prospects, earnings, business business, operations or operations properties of the Investment such Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiaries.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company Fund as contemplated by each of the Investment Advisory AgreementRegistration Statement, Registration Statement the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Each of this Agreement, the Investment Advisory Agreement, the Subadvisory Agreements, the Structuring and Syndication Fee Agreement between the Investment Adviser and Morgan Stanley & Co. XXX (txx “Xxxgan Stanley Fee Axxxxxxnx”), xxe Structuring Fee Agreement between the Investment Adviser and [NAME] (the “[NAME] Fee Agreement”) and [other structuring fee agreements executed by any Investment Adviser] (this Agreement, the Investment Advisory Agreement, the Subadvisory Agreements, the Morgan Stanley Fee Axxxxxxnx, xxx [NAME] Fee Agreement and [other structuring fee agreements executed by any Adviser] are referred to herein, collectively, as the “Adviser Agreements”) has been duly authorized, executed and delivered by the Investment Adviser. This Agreement such Adviser and the Investment Advisory Agreement to which the Investment Adviser is a party comply complies in all material respects with the all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming Each of the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser Agreements is a party represents a valid and binding agreement of the Investment Adviser such Adviser, enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereundergeneral applicability.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this under the applicable Adviser Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default undercontravene (i) any provision of applicable law, (xii) operating agreement the organizational and operative agreements of the Investment Adviser Adviser, (yiii) any agreement, indenture, note, bond, license, lease agreements or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser Adviser, or (ziv) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses except in the case of (yi), (iii) or (z)iv) above, any where such contravention which does not or would not have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) Effect. No consent, approval, authorization, order or permit of, license from, or qualification or registration with with, any governmental body, agency body or authorityagency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a partyapplicable Adviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, Act or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementShares.
(fe) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment an Adviser is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not not, singly or in the aggregate, have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(gf) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications certificates and registrations permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result not, singly or in the aggregate, have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(hg) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in each of the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a partyapplicable Adviser Agreement.
(ih) The Investment Advisory Agreement is and each of the Subadvisory Agreements are in full force and effect and neither the Fund nor the Investment Adviser is not are in default thereunder, and and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default under such document.
(i) All information furnished by the Investment Adviser under for use in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Investment Adviser, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such documentinformation not misleading.
(j) There has not occurred any material adverse change, except or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, prospects, properties or operations of the Investment Adviser from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Investment Adviser which are material to the extent Investment Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) The Investment Adviser maintains a system of internal controls designed to provide reasonable assurance that such default (i) transactions effectuated by it under the applicable Advisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(i) There has been no material unauthorized access or disclosure, or other similar compromise relating to the Investment Adviser’s information technology and computer systems, data and databases used by the Fund (collectively, “IT Systems and Data”) except in each case as would not reasonably be expected to, individually or in the aggregate, have an Adviser Material Adverse Effect, and (ii) the Investment Adviser has implemented controls, policies, procedures, and technological safeguards reasonably designed to maintain and protect the integrity, continuous operation, redundancy and security of its IT Systems and Data reasonably consistent in all material respects with industry standards and practices, or as required by applicable regulatory standards. The Investment Adviser is presently in material compliance with all applicable laws and regulations relating to the privacy and security of its IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(ji) None Neither the Investment Adviser nor its affiliates, or any director, officer, or employee thereof, or, to the Investment Adviser’s knowledge, any agent or representative of the Investment Adviser nor, to its knowledge, or of any of its respective affiliates, has takentaken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any action which constitutes Government Official in order to influence official action, or is to any person in violation of any applicable anti-corruption laws; (ii) the Investment Adviser and its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to cause promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) the Investment Adviser will not use, directly or result inindirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation authorization of the price payment or giving of money, or anything else of value, to any person in violation of any security to facilitate the sale or resale of the Sharesapplicable anti-corruption laws.
(kn) The operations of the Investment Adviser are and have been conducted at all times in material compliance in all material respects with applicable the Anti-Money Laundering Laws Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(li) None of Neither the Investment Adviser norAdviser, to its knowledge, nor any director, officer, or employee thereof, or, to the Investment Adviser’s knowledge, any agent, employee affiliate or affiliate representative of the Investment Adviser, is an individual or entity (“Adviser Person”) that is, or is aware owned or controlled by one or more Adviser Persons that are: (A) the subject of any Sanctions, or has taken any action(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Investment Adviser will not, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person Adviser Person: (A) to fund or entityfacilitate any activities or business of or with any Adviser Person or in any country or territory that, for at the purpose time of financing such funding or facilitation, is the activities subject of Sanctions; or (B) in any person currently subject to other manner that will result in a violation of Sanctions by any U.S. sanctions administered by OFACAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(niii) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance has not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that (i) transactions effectuated by it under at the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf time of the Investment Adviser and delivered to Virtu dealing or its counsel in connection with transaction is or was the offering subject of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to VirtuSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Western Asset Diversified Income Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof of this Agreement and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable the Closing Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and formed, is validly existing in good standing as a business trust under the laws of the State The Commonwealth of California Massachusetts with the full power and authority to conduct all of the activities conducted by it, to own its property or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement Prospectus, and the Investment Advisory Agreement, as the case may be, and Adviser is duly licensed and qualified to transact do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationit is required to be so qualified, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect affect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in 's ability to provide services to the ordinary course of business of Fund; and the Investment Adviser owns, possesses or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesobtained 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 Registration Statement, the Pricing Prospectus and the Prospectus.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an the investment adviser to for the Company Fund as contemplated by the Investment Advisory Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Advisory Agreement, the Administration Agreement, and the Shareholder Servicing Agreement (collectively, the "Adviser Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Adviser Agreement has been duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and ; none of the Investment Advisory Agreement to which the Investment Adviser is a party comply Agreements violate in all any material respects with respect any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act Act; and the applicable Rules and Regulations. Assuming the assuming due and valid authorization, execution and delivery by the other parties thereto, each Adviser Agreement constitutes a legal, valid and binding obligation of the Investment Advisory Adviser, enforceable in accordance with its terms, (i) 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 (ii) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(d) Neither (i) the execution and delivery by the Investment Adviser of any Adviser Agreement nor (ii) the consummation by the Investment Adviser of the transactions contemplated by, or the performance of its obligations under any Adviser Agreement conflicts or will conflict with, or results or will result in a breach of, the Declaration of Trust or By-Laws of the Investment Adviser or any agreement or instrument to which the Investment Adviser is a party represents a valid and binding agreement of or by which the Investment Adviser enforceable against the Investment Adviser in accordance with its termsis bound, except (a) as rights or any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(de) The execution and delivery by No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the Investment Adviser ofconsummation of the transactions contemplated in, and or the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict withany Adviser Agreement, result inas the case may be, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither except such as (i) an Adviser Material Adverse Effect have been obtained under the Securities Act, the Investment Company Act, or the Advisers Act, and (ii) a material adverse effect on may be required by the consummation of the transactions contemplated by this Agreement; provided that no representation NYSE or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States under state securities or "blue sky" laws, in connection with the offer or sale purchase and distribution of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under Underwriters pursuant to this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Underwriting Agreement.
(f) There are The description of the Investment Adviser and its business and the statements attributable to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply with the requirements of the Securities Act and the Investment Company Act and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances in which they were made) not misleading.
(g) Except as disclosed, there is no legal action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental proceedings agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Adviser, threatened to which against or affecting the Investment Adviser is of a party nature required to be disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus or that might reasonably be expected to which result in any of material adverse change in the properties condition, financial or otherwise, business affairs or business prospects of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in or the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform fulfill its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment any Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse EffectAgreement.
(h) The In the event that the Fund or the Investment Adviser has made available any Road Show Materials or promotional materials (other than the financial resources available Sales Materials) by means of an Internet web site or similar electronic means such as to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledgebona fide electronic road show, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA has installed and have instituted maintained pre-qualification and maintain policies and password-protection or similar procedures designed to ensure, effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledgeregistered representatives thereof. In addition, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Underwriters or its counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein thereby, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Credit Opportunities Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Distributor as of the date hereof of this Distribution Agreement and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)the Expiration Date, as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of California with the New York, has full power and authority (corporate and other) to own its property properties and to assets and conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may beProspectus, and is duly qualified to transact do business as a foreign corporation and is in good standing currently maintains all necessary Licenses and Permits in each jurisdiction wherein it owns or leases real property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of upon the Investment Adviser’s business, whether properties, financial position or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesoperations.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act Act, or the rules and regulations under such Acts, from acting as an investment adviser to for the Company Fund as contemplated by in the Prospectus and the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Distribution Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and Each of the Investment Advisory Agreement to which and the Investment Sub-Administration Agreement (collectively, all the foregoing agreements set forth in this sentence are the “Adviser is a party comply in Agreements”), has been duly authorized, executed and delivered by the Adviser; each of the Adviser Agreements complies with all material respects with the applicable provisions of the ActsInvestment Company Act, the Advisers Act and the applicable Rules rules and Regulations. Assuming the regulations under such Acts; and, assuming due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement each of the Investment Adviser Agreements constitutes a legal, valid, binding and enforceable against obligation of the Investment Adviser in accordance with its termsAdviser, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally rights, to general principles of equity (regardless of whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement enforceability is considered in a proceeding in equity or at law) and, and (b) with respect in the case of the Investment Advisory Agreement, to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderAct.
(d) The execution Neither the execution, delivery, performance and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Distribution Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal herein or governmental proceedings pending ortherein or in the Registration Statement or Prospectus, to nor the knowledge fulfillment of the terms thereof will conflict with or violate the certificate of formation, limited liability company agreement, by-laws or similar organizational document of the Investment Adviser, threatened as amended to the date hereof, or conflict with, result in a breach or violation of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under its certificate of formation, limited liability company agreement, by-laws or similar organizational document, as amended to the date hereof, the terms and provisions of any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Investment Adviser is a party or by which it may be bound or to which any of the properties property or assets of the Investment Adviser is subject subject, nor will such action result in any violation of any order, law, rule or regulation of any court or governmental agency or body having jurisdiction over the Investment Adviser or any of its properties.
(ie) other than proceedings accurately described in all material respects in There is no pending or, to the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability best of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its Adviser’s knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by or before any court or governmental agency, authority or body or any arbitrator involving which would disqualify the Investment Adviser with respect pursuant to the Money Laundering Laws is pending or, to the knowledge Section 9(a) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser, threatened’s ability to perform its services under the Investment Advisory Agreement.
(lf) None 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 for the consummation by the Investment Adviser nor, of the transactions contemplated by this Distribution Agreement or the Investment Advisory Agreement to its knowledge, any director, officer, agent, employee or affiliate of be consummated by the Investment Adviser is aware of except such as have been obtained under the Investment Company Act, the Securities Act, the Exchange Act, any NYSE rules, or by FINRA.
(g) The Investment Adviser (A) has taken any actionnot taken, directly or indirectly, any action designed to cause or to result in, or that would result in a violation by such persons has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the FCPA, including, without limitation, making use price of any security of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Fund to pay or authorization facilitate the issuance of the payment of any money, Common Shares or other property, gift, promise to give, the Preferred Shares or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of Combinations, (B) has not since the Shares hereunderfiling of the Registration Statement sold, bid for or purchased, or lendpaid anyone any compensation for soliciting purchases of, contribute Common Shares or otherwise make available such proceeds 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 any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of pay any person currently subject any compensation for soliciting another to purchase any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf other securities of the Investment Adviser and delivered to Virtu or its counsel Fund; provided that any action in connection with the offering of the Shares shall Fund’s dividend reinvestment and cash purchase plan will not be deemed to a representation and warranty by be within the Investment Adviser as to the matters covered therein to Virtuterms of this Section 5(g).
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and represents, warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) as followsthat:
(a) A. The Investment Adviser has been duly formed and is validly existing in good standing under authorized by the laws Trustees of the State of California with the power and authority Trust to own its property and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except delegate to the extent that Sub-Adviser the failure provision of investment services to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). each Fund as contemplated hereby.
B. The Investment Adviser has no wholly owned subsidiariesadopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide the Sub-Adviser with a copy of such code of ethics.
(b) C. The Investment Adviser (i) is registered with the Commission as an investment adviser under the Advisers ActAct and will continue to be so registered for so long as this Agreement remains in effect, and (ii) is not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to the Company as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts1940 Act, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the or other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under regulation or order from performing the Investment Company Act or the reasonableness or fairness of compensation payable thereunder.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions services contemplated by this Agreement; provided that no representation or warranty is made with respect , (iii) has met and will seek to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required continue to be obtained by the Investment Adviser meet for the performance by the Investment Adviser of its obligations under so long as this Agreement is in effect, any other applicable federal or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Actstate requirements, or the applicable Rules and Regulations, (ii) requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions services contemplated by this Agreement.
, (fiv) There are no legal or governmental proceedings pending orhas the full power and authority to enter into and perform the services contemplated by this Agreement, to and (v) will promptly notify the knowledge Sub-Adviser of the Investment Adviser, threatened to which occurrence of any event that would disqualify the Investment Adviser is a party or from serving as investment manager of an investment company pursuant to which any Section 9(a) of the properties 1940 Act or otherwise.
D. The Investment Adviser acknowledges receipt of Part 2A of the Sub-Adviser’s Form ADV at least 48 hours prior to entering into this Agreement, as required by Rule 204-3 under the Advisers Act.
E. The Investment Adviser is subject shall provide (ior cause the Trust’s custodian to provide) other than proceedings accurately described in all material respects timely information to the Sub-Adviser regarding such matters as the composition to assets in the Registration Statement portion of each Fund managed by the Sub-Adviser, cash requirements and cash available for investment in such portion of each such Fund, and all other information as may be reasonably necessary for the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Sub-Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so describedduties hereunder.
(g) F. The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which required to be registered with the passage CFTC as a futures commission merchant, introducing broker, commodity pool operator, commodity trading advisor or leverage transaction merchant, as such terms are defined in the by-laws and rules of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse EffectNFA.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) G. The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the Money Laundering Laws is pending or, to the knowledge of the Investment Adviser, threatened.
(l) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in not required to be registered as a violation by such persons member of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewithNFA.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu the Distributor as of the date hereof of this Distribution Agreement and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)the Expiration Date, as of each Applicable Time and as of each Settlement Date (as defined below) as follows:
(a) The Investment Adviser has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of California with the New York, has full power and authority (corporate and other) to own its property properties and to assets and conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may beProspectus, and is duly qualified to transact do business as a foreign corporation and is in good standing currently maintains all necessary Licenses and Permits in each jurisdiction wherein it owns or leases real property or in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of upon the Investment Adviser’s business, whether properties, financial position or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesoperations.
(b) The Investment Adviser is duly registered with the Commission as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act Act, or the rules and regulations under such Acts, from acting as an investment adviser to for the Company Fund as contemplated by in the Prospectus and the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This Distribution Agreement has been duly authorized, executed and delivered by the Investment Adviser. This Agreement and Each of the Investment Advisory Agreement to which and the Investment Sub-Administration Agreement (collectively, all the foregoing agreements set forth in this sentence are the “Adviser is a party comply in Agreements”), has been or will be duly authorized, executed and delivered by the Adviser; each of the Adviser Agreements complies with all material respects with the applicable provisions of the ActsInvestment Company Act, the Advisers Act and the applicable Rules rules and Regulations. Assuming the regulations under such Acts; and, assuming due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and binding agreement each of the Investment Adviser Agreements constitutes or will constitute a legal, valid, binding and enforceable against obligation of the Investment Adviser in accordance with its termsAdviser, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally rights, to general principles of equity (regardless of whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement enforceability is considered in a proceeding in equity or at law) and, and (b) with respect in the case of the Investment Advisory Agreement, to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderAct.
(d) The execution Neither the execution, delivery, performance and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Distribution Agreement or the Investment Advisory Agreement to which it is a partyAdviser Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal herein or governmental proceedings pending ortherein or in the Registration Statement or Prospectus, to nor the knowledge fulfillment of the terms thereof will conflict with or violate the certificate of formation, limited liability company agreement, by-laws or similar organizational document of the Investment Adviser, threatened as amended to the date hereof, or conflict with, result in a breach or violation of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under its certificate of formation, limited liability company agreement, by-laws or similar organizational document, as amended to the date hereof, the terms and provisions of any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Investment Adviser is a party or by which it may be bound or to which any of the properties property or assets of the Investment Adviser is subject subject, nor will such action result in any violation of any order, law, rule or regulation of any court or governmental agency or body having jurisdiction over the Investment Adviser or any of its properties.
(ie) other than proceedings accurately described in all material respects in There is no pending or, to the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability best of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its Adviser’s knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are and have been conducted at all times in compliance in all material respects with applicable Money Laundering Laws and no threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by or before any court or governmental agency, authority or body or any arbitrator involving which would disqualify the Investment Adviser with respect pursuant to the Money Laundering Laws is pending or, to the knowledge Section 9(a) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser, threatened’s ability to perform its services under the Investment Advisory Agreement.
(lf) None 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 for the consummation by the Investment Adviser nor, of the transactions contemplated by this Distribution Agreement or the Investment Advisory Agreement to its knowledge, any director, officer, agent, employee or affiliate of be consummated by the Investment Adviser is aware of except such as have been obtained under the Investment Company Act, the Securities Act, the Exchange Act, any NYSE rules, any NYSE MKT rules, or by FINRA.
(g) The Investment Adviser (A) has taken any actionnot taken, directly or indirectly, any action designed to cause or to result in, or that would result in a violation by such persons has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the FCPA, including, without limitation, making use price of any security of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise Fund to pay or authorization facilitate the issuance of the payment of any money, Common Shares or other property, gift, promise to give, the Preferred Shares or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of Combinations, (B) has not since the Shares hereunderfiling of the Registration Statement sold, bid for or purchased, or lendpaid anyone any compensation for soliciting purchases of, contribute Common Shares or otherwise make available such proceeds 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 any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of pay any person currently subject any compensation for soliciting another to purchase any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf other securities of the Investment Adviser and delivered to Virtu or its counsel Fund; provided that any action in connection with the offering of the Shares shall Fund’s dividend reinvestment and cash purchase plan will not be deemed to a representation and warranty by be within the Investment Adviser as to the matters covered therein to Virtuterms of this Section 5(g).
Appears in 1 contract
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m), as of each Applicable Time and as of each Settlement Date (as defined below) Underwriter as follows:
(a) The Investment Adviser Each of the Advisers has been duly formed and is validly existing in good standing as a limited partnership or limited liability company under the laws of the State its jurisdiction of California incorporation or formation, with the full company power and authority to own own, lease and operate its property properties and to conduct its business as described in the Registration Statement and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may beProspectus, and is duly qualified to transact do business and is in good standing in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified register or be in good standing to so qualify would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or Advisers' ability to provide services on the prospects, earnings, business or operations behalf of the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement (an “Adviser Material Adverse Effect”). The Investment Adviser has no wholly owned subsidiariesFund.
(b) The Investment Adviser Each of the Advisers is duly registered with the Commission as an investment adviser under the Advisers Act, Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Investment Company 1940 Act Rules and Regulations from acting as an investment adviser under the Management Agreement for the Fund or the Sub-Advisory Agreement to which it is a party [or the Company Additional Compensation Agreement] or the Structuring Fee Agreement as contemplated by the Investment Advisory Agreement, Registration Statement and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into this Agreement, the Management Agreement has to which it is a party, the Sub-Advisory Agreements, the Additional Compensation Agreements and the Structuring Fee Agreement; the execution and delivery of, and the performance by the Investment Adviser of its obligations under this Agreement, the Management Agreement, the Sub-Advisory Agreements, and the Additional Compensation Agreements and the Structuring Fee Agreement have been duly authorizedand validly authorized by the Investment Adviser; and this Agreement, the Management Agreement, the Sub-Advisory Agreements, the Additional Compensation Agreements] and the Structuring Fee Agreement have been duly executed and delivered by the Investment Adviser. This Agreement Adviser and constitute the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with the applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Assuming the due and valid authorization, execution and delivery by the other parties thereto, the Investment Advisory Agreement to which the Investment Adviser is a party represents a valid and legally binding agreement agreements of the Investment Adviser Adviser, enforceable against the Investment Adviser in accordance with its their terms, except (a) as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s 's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, moratorium and other laws relating to or affecting creditors’ ' rights generally (whether statutory or decisional) and by general equitable principles (including without limitation the availability of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity or at law, and (b) with respect to termination under the Investment Company Act or the reasonableness or fairness of compensation payable thereunderprinciples.
(d) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, this Agreement does not conflict with or will not conflict with, result in, or constitute a violation, breach of, or default under, (x) operating agreement Each of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser or (z) any law, rule or regulation applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which would have neither (i) an Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by Virtu.
(e) No consent, approval, authorization, order or permit of, license from, or qualification or registration with any governmental body, agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Investment Adviser for the performance by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement to which it is a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act, or the applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or “blue sky laws” of the various states and foreign jurisdictions in connection with the offer and sale of the Shares or (iv) such as which the failure to obtain would have neither (i) an Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser, threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effect.
(h) The Investment Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus and by under this Agreement and Agreement, the Investment Management Agreement, the Sub-Advisory Agreement to which it is a party, the Additional Compensation Agreements and the Structuring Fee Agreement.
(ie) The Investment Advisory Agreement is in full force description of each Adviser and effect its business, and the Investment Adviser is not statements attributable to such Adviser, in default thereunder, the Registration Statement and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(k) The operations of the Investment Adviser are Prospectus complied and have been conducted at all times in compliance comply in all material respects with applicable Money Laundering Laws the provisions of the Act, the 1940 Act, the Advisers Act, the Rules and no Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment each Adviser with respect to the Money Laundering Laws or its property is pending or, to the best knowledge of each Adviser, threatened that (i) could reasonably be expected to have a material adverse effect on the ability of each Adviser to fulfill its obligations hereunder or under the Management Agreement, the Sub-Advisory Agreement to which it is a party, the Additional Compensation Agreements or the Structuring Fee Agreement or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Advisers, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to such Adviser that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Each of the Advisers 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; each of the Advisers 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 such Adviser under any such permit other than impairments that would not reasonably be expected to have a material adverse effect on the Investment Adviser or the Sub-Advisers, as applicable.
(h) This Agreement, the Management Agreement, the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement or the Sub-Advisory Agreements, the Additional Compensation Agreements or the Structuring Fee Agreement, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Prospectus, compliance with the NYSE rules and the filing requirements of the NASD Division of Corporate Finance.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement, the Sub-Advisory Agreements to the Additional Compensation Agreements and the Structuring Fee Agreement, nor the consummation by the Fund or the Advisers of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the charter, declaration of trust or by-laws of such Adviser, threatened(ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or material decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which such Adviser is a party or by which such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except for Shares repurchases or the issuance or purchase of Shares pursuant to any dividend reinvestment plan of the Fund in effect on the date hereof, none of the Advisers has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) None of In the Investment event that the Fund or an Adviser nor, to its knowledge, makes available any director, officer, agent, employee or affiliate of the Investment Adviser is aware of or has taken any action, directly or indirectly, that would result in a violation promotional materials intended for use only by such persons of the FCPA, including, without limitation, making use of the mails or any qualified broker-dealers and registered representatives thereof by means or instrumentality of interstate commerce corruptly in furtherance of an offerInternet web site or similar electronic means, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted will install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue to ensure, continued compliance therewith.
(m) None of the Investment Adviser nor, to its knowledge, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC and the Investment Adviser will not directly or indirectly use the proceeds from the sale of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) effectively prohibit access to the Company’s assets is permitted only in accordance with its management’s general or specific authorizationsuch promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by or on behalf any officer of the Investment Adviser and delivered to Virtu the Representatives or its counsel for the Underwriters in connection with the offering of the Shares Securities shall be deemed to a representation and warranty by the Investment Adviser Adviser, as to the matters covered therein therein, to Virtueach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (NFJ Dividend, Interest & Premium Strategy Fund)
Representations and Warranties of the Investment Adviser. The Investment Adviser represents and warrants to and agrees with Virtu each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 9(m)this Underwriting Agreement, as of each the Applicable Time, as of the Firm Shares Closing Time and as of each Settlement Date (as defined below) Additional Shares Closing Time, if any, as follows:
(a) The Investment Adviser (i) has been duly formed organized and is validly existing and in good standing as a limited liability company under the laws of the State of California with the Delaware; (ii) has full power and authority to own own, lease and operate its property properties and to assets, and conduct its business and other activities conducted by it as described in the Registration Statement Statement, the Pricing Prospectus and the Prospectus and enter into this Agreement and the Investment Advisory Agreement, as the case may be, and Prospectus; (iii) is duly licensed and qualified to transact do business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or its ownership or leasing of property other activity requires such qualification, except to the extent that the such failure to be so qualified or be in good standing does not or would not be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations of Investment Manager’s ability to perform its obligations under this Underwriting Agreement and the Investment Adviser, whether or not arising from transactions in the ordinary course of business of the Investment Adviser or under this Agreement Manager Agreements (as defined herein) (an “Investment Adviser Material Adverse Effect”). The ; (iv) owns, possesses or has obtained and currently maintains all Licenses and Permits, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement, the Pricing Prospectus and the Prospectus; and (v) has made all necessary filings required under any applicable federal, state, local or foreign law, regulation or rule, except where the failure to make such a filing would not result in an Investment Adviser has no wholly owned subsidiariesMaterial Adverse Effect.
(b) The Investment Adviser is (i) duly registered with the Commission as an investment adviser under the Advisers Act, Act and is (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as an investment adviser to for the Company Fund as contemplated by the Investment Advisory Management Agreement, the Registration Statement Statement, the Pricing Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the Commission.
(c) This The Investment Adviser has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement, the Subscription Agreement and the Fee Agreements (collectively, the “Adviser Agreements”), and carry out all the terms and provisions hereof and thereof to be carried out by it; and (i) each Adviser Agreement has been or will be duly and validly authorized, executed and delivered by the Investment Adviser. This Agreement and , (ii) the Investment Advisory Agreement to which the Investment Adviser is a party comply in all material respects with Agreements do not violate any of the applicable provisions of the Acts, Investment Company Act or the Advisers Act and the applicable Rules and Regulations. Assuming the (iii) assuming due and valid authorization, execution and delivery by the other parties thereto, each of the Investment Advisory Agreement to which the Investment Adviser is Agreements constitutes a party represents a legal, valid and binding agreement obligation of the Investment Adviser enforceable against the Investment Adviser in accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s obligations thereunder may be limited by U.S. bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership, moratorium, insolvency and other similar laws relating to or affecting creditors’ rights generally (generally, whether statutory or decisional) , and by to general equitable principles (including without limitation the availability regardless of specific performance or injunctive relief and the application of concepts of materiality reasonableness, good faith and fair dealing) whether enforcement is considered sought in a proceeding in equity or at law), and (b) with respect except as enforcement of rights to termination under the Investment Company Act indemnity thereunder may be limited by federal or the reasonableness or fairness of compensation payable thereunderstate securities laws.
(d) The execution None of (i) the execution, delivery and delivery performance by the Investment Adviser ofof the Adviser Agreements, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Underwriting Agreement, the Registration Statement, the Pricing Prospectus, the Prospectus or any of the Adviser Agreements and (iii) the performance by the Investment Adviser of its obligations under, this Agreement does not conflict under any of the Adviser Agreements or performance and consummation by the Investment Adviser of the other transactions contemplated by the Adviser Agreements (A) conflicts with or will not conflict with, or results in or will result inin a breach or violation of the limited liability company agreement, bylaws or constitute similar organizational documents of the Investment Adviser, (B) conflicts with or will conflict with, results in or will result in a violation, breach or violation of, or constitutes or will constitute a default or an event of default under, (x) operating any agreement or instrument to which the Investment Adviser is a party or by which it is bound or to which any of the property or assets of the Investment Adviser (y) any agreement, indenture, note, bond, license, lease or other instrument or obligation binding upon the Investment Adviser that is material to the Investment Adviser subject or (zC) results in or will result in any violation of any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Adviser or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Investment Adviser’s properties, whether foreign or domestic; except, with respect to except in the case of clauses (yB) or (zC), any contravention which where such conflict, breach, default or violation, either individually or in the aggregate, does not or would have neither (i) not result in an Investment Adviser Material Adverse Effect or (ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Shares in such jurisdiction by VirtuEffect.
(e) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit ofby, license fromany federal, state, local or qualification foreign court or registration governmental or regulatory agency, commission, board, authority or body or with any governmental body, agency or authority, self-regulatory organization organization, other non-governmental regulatory authority, securities exchange or court or other tribunalassociation, whether foreign or domestic, is required to be obtained by the Investment Adviser for the consummation by the Investment Adviser of the transactions to be performed by the Investment Adviser or the performance by the Investment Adviser of its obligations under this Agreement all the terms and provisions to be performed by or on behalf of it in each case as contemplated in the Adviser Agreements, the Registration Statement, the Pricing Prospectus or the Investment Advisory Agreement to which it is a partyProspectus, except (i) such as have been obtained and such as may be required (and shall be obtained prior to commencement of the transactions contemplated by (ithis Underwriting Agreement) under the Acts, the Advisers Securities Act, the Exchange Act, the Investment Company Act or the applicable Rules and RegulationsAdvisers Act, (ii) may be required by the rules and regulations of NASDAQ, FINRA or of the NYSE, (iii) by the under state securities or “blue sky sky” laws” of the various states and foreign jurisdictions , in connection with the offer purchase and sale distribution of the Shares by the Underwriters pursuant to this Underwriting Agreement, or (iviii) such as which where the failure to obtain such consent, approval, authorization, notification or order does not or would have neither (i) not result in an Investment Adviser Material Adverse Effect nor (ii) a material adverse effect on the consummation of the transactions contemplated by this AgreementEffect.
(f) There are The description of the Investment Adviser and its business and the statements attributed to the Investment Adviser in the Registration Statement, the Pricing Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and the Investment Company Act and do 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 (in the case of the Pricing Prospectus and the Prospectus in light of the circumstances under which they were made) not misleading.
(g) Except as set forth in the Registration Statement, the Pricing Prospectus or the Prospectus, there is no legal action, suit, claim, inquiry, investigation or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court, commission, regulatory body, administrative agency or other governmental proceedings pending oragency or body, whether foreign or domestic, now pending, or to the knowledge of the Investment Adviser, threatened to which against the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject (i) other than proceedings accurately described if determined adversely would result in all material respects in the Registration Statement and the Prospectus and proceedings that would not have an Investment Adviser Material Adverse Effect, or that would not have a material adverse effect on the power or ability of the Investment Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and the Prospectus Effect or (ii) that are is of a character required to be described in the Registration Statement Statement, the Pricing Prospectus or the Prospectus and are is not so described.
(g) The Investment Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser Material Adverse Effectas required.
(h) The Except for (i) stabilization transactions conducted by the Underwriters, and (ii) the issuance or purchase of 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 Pricing Prospectus or the Prospectus, the Investment Adviser has the financial resources available to it necessary for the performance of its services not taken and obligations as contemplated in the Registration Statement and the Prospectus and by this Agreement and the Investment Advisory Agreement to which it is a party.
(i) The Investment Advisory Agreement is in full force and effect and the Investment Adviser is will not in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document, except to the extent that such default would not have an Adviser Material Adverse Effect.
(j) None of the Investment Adviser nor, to its knowledge, any of its respective affiliates, has takentake, directly or indirectly, any action designed or which constitutes or is designed might be expected to cause or result in, or which could reasonably be expected to will constitute, cause or result in, the stabilization or manipulation of the price of the Shares in violation of applicable federal securities laws.
(i) In the event that the Fund or the Investment Adviser has made available any security Road Show Materials or promotional materials (other than the Sales Materials) by means of an Internet web site or similar electronic means such as to facilitate constitute a bona fide electronic road show, the sale Investment Adviser has installed and maintained pre-qualification and password-protection or resale similar procedures which are reasonably designed and expected to effectively prohibit access to such Road Show Materials or promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(j) The Investment Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the SharesAdvisers Act reasonably designed to prevent violation of the Advisers Act by the Investment Adviser and its supervised persons.
(k) The operations Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) Neither the Investment Adviser nor any director or officer of the Investment Adviser, nor, to the Investment Adviser’s knowledge, any of the Investment Adviser’s subsidiaries, employees, agents or representatives, have taken or will take any action in furtherance of an unlawful offer, payment, promise to pay, or authorization or approval of the payment or giving of anything of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and to the extent required by applicable law, the Investment Adviser are and its subsidiaries have been conducted at policies and procedures reasonably designed to comply with applicable anti-corruption laws including, without limitation, the FCPA, and will continue to maintain these policies and procedures reasonably designed to comply with such laws.
(m) To the extent required by applicable law, the Investment Adviser and its subsidiaries have policies and procedures reasonably designed to comply with all times in compliance in all material respects with applicable Money Laundering Laws Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Investment Adviser with respect to the any applicable Money Laundering Laws is pending or, to the knowledge of the Investment AdviserAdviser and its subsidiaries, threatened.
(ln) None of Neither the Investment Adviser nor, to its knowledge, nor any director, officer, agent, employee officer or affiliate of the Investment Adviser is aware of or has taken any actionAdviser, directly or indirectly, that would result in a violation by such persons of nor to the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and to its Investment Adviser’s knowledge, the Investment Adviser its affiliates have conducted their businesses in all material respects in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(m) None any of the Investment Adviser norAdviser’s employees, to its knowledgeagents or representatives, any director, officer, agent, employee or affiliate of the Investment Adviser is currently subject to any U.S. sanctions administered by OFAC OFAC; and the Investment Adviser will not directly or indirectly use direct the proceeds from the sale of the Shares hereunderoffering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(n) The Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by or on behalf of the Investment Adviser and delivered to Virtu or its counsel in connection with the offering of the Shares shall be deemed to a representation and warranty by the Investment Adviser as to the matters covered therein to Virtu.
Appears in 1 contract
Samples: Underwriting Agreement (Calamos Long/Short Equity & Dynamic Income Trust)
