Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows: (a) The Investment Manager has been duly formed, is validly existing as a limited liability company under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus. (b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus. (c) The Investment Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager. (e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement. (f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement. (h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means. (i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus. (j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus. (k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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. (l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager. (m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement. (n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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. (o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 5 contracts
Samples: Underwriting Agreement (Pimco New York Municipal Income Fund Iii), Underwriting Agreement (Pimco Municipal Income Fund Iii), Underwriting Agreement (Pimco Municipal Income Fund Ii)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company corporation under the laws of the State of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business Investment Manager Agreements (as described in the Registration Statement and Prospectusdefined below), and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Manager Agreements, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to perform its obligations under the FundInvestment Manager Agreements; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Manager Agreements.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser manager for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager 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 Management Agreement and the Portfolio Management Investment Advisory Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Management Agreement and the Portfolio Management Investment Advisory Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, under any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement charter or other organizational documents by-laws of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Manager's ability to perform its obligations under the Investment Manager Agreements.
(e) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Investment Manager on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable attributed to the Investment Manager, 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager AgreementProspectus.
(h) None of the Fund, The Fund and the Investment Manager or the Portfolio Manager has made available will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager Investment Adviser has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusInvestment Advisory Agreement, and the Portfolio Manager Investment Adviser is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Advisory Agreement, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect effect on the Portfolio ManagerInvestment Adviser's ability to provide services to perform its obligations under the FundInvestment Advisory Agreement; and the Portfolio Manager 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 in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Advisory Agreement.
(j) The Portfolio Manager Investment Adviser is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Investment Advisory Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting the Investment Advisory Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager the Investment Advisory Agreement has been duly and validly authorized, executed and delivered by the Portfolio ManagerInvestment Adviser; none of the Portfolio Manager Agreements violates Investment Advisory Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager the Investment Advisory Agreement constitutes a legal, valid and binding obligation of the Portfolio ManagerInvestment 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager Investment Adviser of any Portfolio Manager the Investment Advisory Agreement nor (ii) the consummation by the Portfolio Manager Investment Adviser of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager under the Investment Advisory Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement organizational or other organizational operational documents of the Portfolio Manager Investment Adviser or any agreement or instrument to which the Portfolio Manager Investment Adviser is a party or by which the Portfolio Manager Investment Adviser is bound, 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 the Portfolio ManagerInvestment Adviser except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Adviser's ability to perform its obligations under the Investment Advisory Agreement.
(m) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, 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 Portfolio Manager Investment Adviser of its obligations under, any Portfolio Manager Agreement, as the case may be, Investment Advisory Agreement except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager Investment Adviser and its business, and the statements attributable attributed to the Portfolio ManagerInvestment 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio ManagerInvestment Manager after due and appropriate inquiry, threatened against or affecting the Portfolio Manager Investment Adviser of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(p) The Investment Adviser will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreementsimilar electronic means.
Appears in 4 contracts
Samples: Underwriting Agreement (Scudder Rreef Real Estate Fund Ii Inc), Underwriting Agreement (Scudder Rreef Real Estate Fund Inc), Underwriting Agreement (Scudder Rreef Real Estate Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter andrepresents, in the case of paragraph (f) also to the Fund, as followswarrants and covenants that:
(a) The Investment Manager has been It is duly formed, is validly existing as a limited liability company incorporated under the laws of the State of Delaware with full power England and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the ProspectusWales.
(b) The Investment Manager is (i) duly registered as It has and will maintain throughout the term of this Agreement, all of the powers, rights and authorities to carry on the business of an investment adviser manager under the Advisers Act and Applicable Requirements (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreementincluding, without limitation, the Registration Statement and appropriate permissions from the ProspectusFSA, but excluding solely for this purpose any registrations with the SEC).
(c) The Investment Manager has, or at Neither the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery nor the performance of this Agreement will violate any Applicable Requirements or applicable court order, nor will the same constitute a breach of, or default under, provisions of any agreement or contract to which it is a party or by which it is bound and assuming the other parties theretoaccuracy of sub-clause 6.2(b) below, each Investment Manager Agreement constitutes a legalall required regulatory filings and notices, valid and binding obligation of the Investment Managerif any, enforceable have been made and, if necessary, approvals received (or applicable waiting or notice periods lapsed) in accordance connection 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 lawsthis Agreement.
(d) Neither (i) It has the execution power, right and delivery authority to execute, deliver and perform this Agreement and any transaction contemplated by the Investment Manager terms of any Investment Manager this Agreement.
(e) It has, at least 48 hours prior to entering into this Agreement nor (ii) furnished to the consummation by the Investment Manager Customer a true and complete copy of the transactions contemplated by, or the performance Part II of its obligations undermost recent Form ADV; and since the date of such Form ADV, there has not been, occurred or arisen any Investment Manager Agreement conflicts material adverse change in the financial condition or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational documents business of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is boundevent, condition, or any law, rule or regulationstate of facts which materially and adversely affects, or order to its knowledge threatens to materially affect, the business or financial condition of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Investment Manager.
(ef) No consentIn terms of intellectual property, approvalit is the sole owner of all right, authorization title and interest in and to the intellectual property used by it to perform its obligations hereunder or, to its knowledge, possesses all appropriate licenses to use the intellectual property; has not sold, granted, conveyed, licensed or order of assigned to any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the consummation of the transactions contemplated inthird party, or in any way encumbered, the performance intellectual property in a manner that interferes with the Investment Manager’s obligations under this Agreement; and the intellectual property used by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable does not to the Investment Manager, in ’s knowledge infringe 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Managerthird party.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 4 contracts
Samples: Investment Management Agreement (Genworth Financial Inc), Investment Management Agreement (Genworth Financial Inc), Investment Management Agreement (Genworth Financial Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Advisory Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement, the Shareholder Servicing Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None 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 FundShares is completed in accordance with the policies of the Fund as set forth in the Prospectus, the Investment Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws, provided that, for the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Manager shall be deemed to be action taken, directly or indirectly, by the Investment Manager for purposes of this Section 4(h).
(i) In the event that the Fund or the Portfolio Investment Manager has made available any promotional materials (other than the sales materials) intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, pre-qualification and password-protection or similar procedures were used effectively prohibiting access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(ij) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(jk) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each the Portfolio Manager Management Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates Management Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each the Portfolio Manager Management Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager of any the Portfolio Manager Management Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any the Portfolio Manager Management 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(mn) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any the Portfolio Manager Management Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any the Portfolio Management Agreement.
(q) 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 Portfolio Manager Agreementhas not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws.
Appears in 4 contracts
Samples: Underwriting Agreement (Nicholas Applegate Convertible & Income Fund Ii), Underwriting Agreement (Pimco New York Municipal Income Fund Iii), Underwriting Agreement (Nicholas Applegate Convertible & Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Advisory Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws, provided that, for the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Manager shall be deemed to be action taken, directly or indirectly, by the Investment Manager for purposes of this Section 4(h).
(i) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(ij) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(jk) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(mn) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
(q) 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 Portfolio Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws.
Appears in 3 contracts
Samples: Underwriting Agreement (Pimco Municipal Income Fund Ii), Underwriting Agreement (Pimco California Municipal Income Fund Ii), Underwriting Agreement (Pimco New York Municipal Income Fund Ii)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company partnership under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company partnership agreement or other organizational documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Pimco New York Municipal Income Fund), Underwriting Agreement (Pimco Municipal Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Loan Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Loan Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Loan Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Loan Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, operating agreement or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having or asserting jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the Loan Agreement applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 2 contracts
Samples: Investment Management Agreement (FS Investment Corp II), Investment Management Agreement (FS Investment CORP)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of the State of Delaware with and has the full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the 40 Act Financing Agreements applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the 40 Act Financing Agreements;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each execute and deliver this Agreement and to perform all of this Underwriting Agreement, its obligations hereunder and under the 40 Act Financing Agreements applicable to the Investment Management Agreement and the Portfolio Management Agreement Manager;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates are in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the 40 Act Financing Agreements applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of incorporation, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having proper jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the 40 Act Financing Agreements applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 2 contracts
Samples: Investment Management Agreement (FS Investment Corp IV), Investment Management Agreement (FS Investment Corp III)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusManager Agreements.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Manager Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have a material adverse effect on the condition (financial or other), assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement and the Manager Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Manager Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby:
(i) requires the Investment Manager 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 Manager or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager 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 Manger to perform its obligations under the Manager Agreements. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyManager Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Manager Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and subject to applicable the qualification that the enforceability of the Investment Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAgreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus comply (and any amendment or supplement thereto) complied and complies in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and do Regulations and does not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that might should reasonably be expected to result in any have a material adverse change in effect on the ability of the Investment Manager to fulfill perform its respective obligations under any Investment this Agreement and the Manager AgreementAgreements.
(hi) None The Investment Manager has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("Investment Manager Permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto) except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the FundInvestment Manager to perform its obligation under the Manager Agreements.
(j) The Investment Manager has fulfilled and performed all its material obligations with respect to such Investment Manager 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 Manager under any such Investment Manager Permit, except where the revocation, termination or impairment of the Investment Manager's rights under such Investment Manager Permits should not reasonably be expected to have a material adverse effect on the ability of the Investment Manager to perform its obligations under the Manager Agreements.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(l) In the event that the Fund or the Portfolio Investment Manager has made makes available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment subManager will install and maintain pre-adviser for the Fund as contemplated qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by the Portfolio Management Agreement, the Registration Statement persons other than qualified broker-dealers and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Managerregistered representatives thereof.
(m) 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 This Agreement and the consummation Manager Agreements comply in all material respects with all applicable provisions of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the 1940 Act, the Investment Company 1940 Act or Rules and Regulations, the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Advisers Act Rules 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 misleadingRegulations.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Salomon Brothers Emerging Markets Debt Fund Inc), Underwriting Agreement (Salomon Brothers Inflation Management Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company corporation under the laws of the State of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business Investment Manager Agreements (as described in the Registration Statement and Prospectusdefined below), and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Manager Agreements, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to perform its obligations under the FundInvestment Manager Agreements; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Manager Agreements.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser manager for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Additional Compensation Agreement, the Investment Management Agreement and the Portfolio Management Investment Advisory Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Additional Compensation Agreement, the Investment Management Agreement and the Portfolio Management Investment Advisory Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, under any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement charter or other organizational documents by-laws of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Manager's ability to perform its obligations under the Investment Manager Agreements.
(e) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Investment Manager on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable attributed to the Investment Manager, 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(h) Except for stabilization activities conducted by the Managing Representative and except for tender offers, Share repurchases and the issuance or that 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Shares in any material adverse change in the ability violation of applicable federal securities laws.
(i) The Fund and the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
(ij) The Portfolio Manager Investment Adviser has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusInvestment Advisory Agreement, and the Portfolio Manager Investment Adviser is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Advisory Agreement, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio ManagerInvestment Adviser's ability to provide services to perform its obligations under the FundInvestment Advisory Agreement; and the Portfolio Manager 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 in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Advisory Agreement.
(jk) The Portfolio Manager Investment Adviser is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Investment Advisory Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, Investment Adviser has full power and authority to enter into each of this Underwriting the Investment Advisory Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager the Investment Advisory Agreement has been duly and validly authorized, executed and delivered by the Portfolio ManagerInvestment Adviser; none of the Portfolio Manager Agreements violates Investment Advisory Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager the Investment Advisory Agreement constitutes a legal, valid and binding obligation of the Portfolio ManagerInvestment 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager Investment Adviser of any Portfolio Manager the Investment Advisory Agreement nor (ii) the consummation by the Portfolio Manager Investment Adviser of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager under the Investment Advisory Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement organizational or other organizational operational documents of the Portfolio Manager Investment Adviser or any agreement or instrument to which the Portfolio Manager Investment Adviser is a party or by which the Portfolio Manager Investment Adviser is bound, 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 the Portfolio ManagerInvestment Adviser except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Adviser's ability to perform its obligations under the Investment Advisory Agreement.
(mn) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, 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 Portfolio Manager Investment Adviser of its obligations under, any Portfolio Manager Agreement, as the case may be, Investment Advisory Agreement except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager Investment Adviser and its business, and the statements attributable attributed to the Portfolio ManagerInvestment 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio ManagerInvestment Manager after due and appropriate inquiry, threatened against or affecting the Portfolio Manager Investment Adviser of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(q) Except for stabilization activities conducted by the Managing Representative and except for tender offers, Share repurchases and the issuance or that 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 not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in any material adverse change in the ability in, or which will constitute, stabilization or manipulation of the Portfolio Manager to fulfill its respective obligations under price of the Common Shares in violation of applicable federal securities laws.
(r) The Investment Adviser will not make any Portfolio Manager Agreementpromotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
Appears in 2 contracts
Samples: Underwriting Agreement (Scudder Rreef Real Estate Fund Ii Inc), Underwriting Agreement (Scudder Rreef Real Estate Fund Ii Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Credit Documents applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Credit Documents;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Credit Documents;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Credit Documents applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, operating agreement or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Credit Documents applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 2 contracts
Samples: Investment Management Agreement (FS Investment Corp II), Investment Management Agreement (FS Investment CORP)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Credit Documents applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Credit Documents;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each execute and deliver this Agreement and to perform all of this Underwriting Agreement, its obligations hereunder and under the Credit Documents applicable to the Investment Management Agreement and the Portfolio Management Agreement Manager;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any material federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Credit Documents applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its charter or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Credit Documents applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (Corporate Capital Trust, Inc.)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company partnership under the laws of the State state of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Advisory Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company partnership agreement or other organizational documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws, provided that, for the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Manager shall be deemed to be action taken, directly or indirectly, by the Investment Manager for purposes of this Section 4(h).
(i) In the event that the Fund, the Investment Manager or the Portfolio Manager has made makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Investment Manager will install and maintain pre-qualification and password-protection or similar procedures which will effectively prohibit access to such promotional materials by persons other than qualified broker- dealers and registered representatives thereof.
(ij) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(jk) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(mn) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
(q) 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 Portfolio Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws.
Appears in 1 contract
Samples: Underwriting Agreement (Pimco California Municipal Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusManager Agreements.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Manager Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have a material adverse effect on the condition (financial or other), assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement and the Manager Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Manager Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby:
(i) requires the Investment Manager 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 Manager or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager 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 Manger to perform its obligations under the Manager Agreements. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyManager Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Manager Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and subject to applicable the qualification that the enforceability of the Investment Manager’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' ’ rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAgreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus comply (and any amendment or supplement thereto) complied and complies in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and do Regulations and does not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that might should reasonably be expected to result in any have a material adverse change in effect on the ability of the Investment Manager to fulfill perform its respective obligations under any Investment this Agreement and the Manager AgreementAgreements.
(hi) None The Investment Manager has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (“Investment Manager Permits”) as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto) except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the FundInvestment Manager to perform its obligation under the Manager Agreements.
(j) The Investment Manager has fulfilled and performed all its material obligations with respect to such Investment Manager 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 Manager under any such Investment Manager Permit, except where the revocation, termination or impairment of the Investment Manager’s rights under such Investment Manager Permits should not reasonably be expected to have a material adverse effect on the ability of the Investment Manager to perform its obligations under the Manager Agreements.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(l) In the event that the Fund or the Portfolio Investment Manager has made makes available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment subManager will install and maintain pre-adviser for the Fund as contemplated qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by the Portfolio Management Agreement, the Registration Statement persons other than qualified broker-dealers and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Managerregistered representatives thereof.
(m) 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 This Agreement and the consummation Manager Agreements comply in all material respects with all applicable provisions of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the 1940 Act, the Investment Company 1940 Act or Rules and Regulations, the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Advisers Act Rules 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 misleadingRegulations.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Salomon Brothers Variable Rate Strategic Fund Inc.)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Credit Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Credit Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Credit Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Credit Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of incorporation, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having or asserting jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the Credit Agreement applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Investment Corp II)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), business, prospects, assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusAdvisory Agreements (an "Adviser Material Adverse Effect").
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Advisory Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have an Adviser Material Adverse Effect.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby:
(i) requires the Investment Manager 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 Manager or conflicts or will conflict with or constitutes or will constitute a breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 the Investment Manager 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 Manager is subject, except in any case under clause (i) or (ii) as should not reasonably be expected to have an Adviser Material Adverse Effect. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyAdvisory Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Advisory Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Advisory Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and federal and state securities law and subject to applicable the qualification that the enforceability of the Investment Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAdvisory Agreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and Regulations and do not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that should reasonably be expected to have an Adviser Material Adverse Effect.
(i) The Investment Manager has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("Investment Manager Permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto), except to the extent that the failure to so have should not reasonably be expected to have an Adviser Material Adverse Effect.
(j) The Investment Manager has fulfilled and performed all its material obligations with respect to such Investment Manager 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 Manager under any such Investment Manager Permit, except where the revocation, termination or impairment of the Investment Manager's rights under such Investment Manager Permits should not reasonably be expected to have an Adviser Material Adverse Effect.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in in, stabilization or manipulation of the price of any material adverse change in securities issued by the ability Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager to fulfill its respective obligations under any Investment Manager AgreementManager.
(hl) None of Neither the Fund, Fund nor the Investment Manager or the Portfolio Manager has made available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(im) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under Advisory Agreements and the laws of Delaware provisions in this Agreement applicable to the Advisers comply in all material respects with full power and authority to conduct all applicable provisions of the activities conducted by it1940 Act, to own or lease all of the assets owned or leased by it 1940 Act Rules and to conduct its business as described in the Registration Statement and ProspectusRegulations, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement Rules and the ProspectusRegulations.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Real Estate Income Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), business, prospects, assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusAdvisory Agreements.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Advisory Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have a material adverse effect on the condition (financial or other), assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement and the Advisory Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby:
(i) requires the Investment Manager 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 Manager or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager 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 Manager to perform its obligations under this Agreement and the Advisory Agreements. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at administrative agency except as otherwise disclosed to the relevant time had, Underwriter or in the Registration Statement.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyAdvisory Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Advisory Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Advisory Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and federal and state securities law and subject to applicable the qualification that the enforceability of the Investment Manager’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' ’ rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAdvisory Agreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and Regulations and do not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that might should reasonably be expected to result in any have a material adverse change in effect on the ability of the Investment Manager to fulfill perform its respective obligations under any Investment Manager Agreementthis Agreement and the Advisory Agreements.
(hi) None The Investment Manager has such permits, licenses, franchises and authorizations of governmental or regulatory authorities (“Investment Manager Permits”) as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto) except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the FundInvestment Manager to perform its obligations under the Advisory Agreements;
(j) The Investment Manager has fulfilled and performed all its material obligations with respect to such Investment Manager 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 Manager under any such Investment Manager Permit, except where the revocation, termination or impairment of the Investment Manager’s rights under such Investment Manager Permits should not reasonably be expected to have a material adverse effect on the ability of the Investment Manager to perform its obligations under the Advisory Agreements.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the Portfolio price of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(l) Neither the Fund nor the Investment Manager has made available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(im) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware Advisory Agreements comply in all material respects with full power and authority to conduct all applicable provisions of the activities conducted by it1940 Act, to own or lease all of the assets owned or leased by it 1940 Act Rules and to conduct its business as described in the Registration Statement and ProspectusRegulations, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement Rules and the ProspectusRegulations.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Real Estate Income Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware New York, with full power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to the extent that failure register or to be so qualified or be in good standing would qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), general affairs, business, business prospects, properties, net assets or results of operations of the Investment Manager ownsor on the ability of the Investment Manager to perform its obligations under this Agreement, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement Advisory Agreement and the ProspectusAdministration Agreement.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Advisory Agreement for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, or any facts or circumstances the existence of which could lead to any proceeding, which might adversely affect the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 may involve a prospective material adverse change in the condition (financial or other), general affairs, business, business prospects, properties, net assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement, the Advisory Agreement and the Administration Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the performance of the Advisory Agreement or the Administration Agreement by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby (i) requires the Investment Manager 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 or conflicts or will conflict with or constitutes or will constitute a breach of or a default under the Charter, By-laws, or other organizational documents, of the Investment Manager or (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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager is subject. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement and the Advisory Agreement, the execution and delivery of this Agreement, and the performance by the Investment Management Manager of its obligations under this Agreement, the Advisory Agreement and the Portfolio Management Administration Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has have been duly and validly authorizedauthorized by the Investment Manager, and this Agreement and the Advisory Agreement and the Administration Agreement have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery of this Agreement by the other parties thereto, each Investment Manager Agreement constitutes a legal, the valid and legally binding obligation agreement of the Investment Manager, enforceable against the Investment Manager in accordance with its terms, (i) subject, terms except as rights to enforcement, indemnity and contribution hereunder or thereunder may be limited by federal or state securities laws or considerations of public policy and subject to applicable the qualification that the enforceability of the Investment Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency fraudulent conveyance, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to by 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).
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, as contemplated in the Prospectus (or any Investment Manager Agreement conflicts amendment or will conflict with, or results or will result in a breach ofsupplement thereto) and under this Agreement, the limited liability company agreement or other organizational documents of Advisory Agreement and the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Administration Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and do Regulations and did not and will not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no actionExcept as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), 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, subsequent to the knowledge respective dates as of which such information is given in the Investment ManagerRegistration Statement and the Prospectus (or any amendment or supplement to either of them), threatened against or affecting the Investment Manager has not incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of a nature business, that is required to be disclosed in the Registration Statement or the Prospectus and there has not been any material adverse change, or that might any development involving or which may reasonably be expected to result in any involve, a prospective material adverse change change, in the condition (financial or other), general affairs, business, business prospects, properties, net assets or results of operations of the Investment Manager, whether or not arising in the ordinary course of business, or which, in each case, could effect the ability of the Investment Manager to fulfill perform its respective obligations under any Investment Manager this Agreement, the Advisory Agreement or the Administration Agreement.
(hi) None The Investment Manager has such permits as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto); (ii) the Investment Manager 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 would result in any other material impairment of the Fundrights of the Investment Manager under any such permit.
(j) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Shares or of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(k) Each of this Agreement, the Advisory Agreement and the Administration Agreement comply in all material respects with the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(l) In the event that the Fund or the Portfolio Investment Manager has made makes available any promotional materials regarding the Fund or the Investment Manager in connection with the offering of the Shares intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act Manager will install and maintain pre-qualification and password-protection or the Advisers Act, similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementregistered representatives thereof.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Cohen & Steers Advantage Income Realty Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsManager that:
(a) The the Investment Manager has been duly formed, is validly existing as a limited liability company corporation formed under the laws of the State of Delaware with full power Canada and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental and regulatory licenses, permits, consents, orders, registrations and approvals and other authorizations, whether foreign or domestic, required by law as may be necessary to carry on perform its business as contemplated obligations hereunder and its head office is located in the Registration Statement and the Prospectus.Kelowna, British Columbia;
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, it has full power capacity and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to act as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager described herein. This Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none on behalf of the Investment Manager Agreements violates in any material respect any of the applicable provisions and is a valid and binding agreement of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 enforcement thereof may be limited by federal bankruptcy, insolvency, reorganization, moratorium and other laws relating to or state securities lawsaffecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms may be limited by applicable law.
(c) the Investment Manager is registered as a portfolio manager in the provinces of Ontario and British Columbia.
(d) Neither (i) the execution and delivery by the Investment Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is there are no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement contemplated proceedings or Prospectus investigations or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding enquiries before or by any court, commissiongovernmental self-regulatory body or exchange which are reasonably expected to impair the Investment Manager’s ability to discharge its obligations hereunder or that relate to any Approvals, necessary to permit it to perform its obligations hereunder and the Investment Manager shall promptly notify the Manager of any such proceedings, investigations or enquiries;
(e) the Investment Manager has, as of the date hereof, all Approvals and may conduct its business as currently conducted and as currently proposed to be conducted in the Prospectus and, as of the date hereof, all such Approvals are in full force and effect in accordance with their terms. The Investment Manager shall promptly advise the Manager if such representation is no longer accurate or if the Investment Manager is aware that the loss of any such Approval is probable;
(f) the Investment Manager has not received notice from any governmental or regulatory bodyauthority of any jurisdiction in which it carries on a material part of its business, administrative agency or other governmental agency owns or bodyleases any material property, foreign of any restriction on its ability to, or domesticof a requirement for it to qualify to, now pending ornor is the Investment Manager otherwise aware of any restriction on its respective abilities to, or of a requirement for it to qualify to, discharge its services hereunder;
(g) any information supplied to the Manager with respect to the Investment Manager that is included in the Prospectus to date is, to the knowledge best of the Portfolio Investment Manager’s knowledge, threatened against or affecting accurate and complete; and
(h) the Portfolio appropriate personnel at the Investment Manager have read and are aware of a nature required to be disclosed the Investment Policy of the Corporation as set forth in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager AgreementProspectus.
Appears in 1 contract
Samples: Investment Management Agreement
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of the State of Delaware with and has the full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the 40 Act Financing Agreements applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the 40 Act Financing Agreements;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each execute and deliver this Agreement and to perform all of this Underwriting Agreement, its obligations hereunder and under the 40 Act Financing Agreements applicable to the Investment Management Agreement and the Portfolio Management Agreement Manager;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates are in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the 40 Act Financing Agreements applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its certificate of trust, declaration of trust or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having proper jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the 40 Act Financing Agreements applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company corporation under the laws of the State of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business Investment Manager Agreements (as described in the Registration Statement and Prospectusdefined below), and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Manager Agreements, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to perform its obligations under the FundInvestment Manager Agreements; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Manager Agreements.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser manager for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager 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 Management Agreement and the Portfolio Management Investment Advisory Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Management Agreement and the Portfolio Management Investment Advisory Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, under any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement charter or other organizational documents by-laws of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Manager's ability to perform its obligations under the Investment Manager Agreements.
(e) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Investment Manager on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS New Preferred Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable attributed to the Investment Manager, 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager AgreementProspectus.
(h) None of the Fund, The Fund and the Investment Manager or the Portfolio Manager has made available will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager Investment Adviser has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusInvestment Advisory Agreement, and the Portfolio Manager Investment Adviser is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Advisory Agreement, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect effect on the Portfolio ManagerInvestment Adviser's ability to provide services to perform its obligations under the FundInvestment Advisory Agreement; and the Portfolio Manager 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 in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Advisory Agreement.
(j) The Portfolio Manager Investment Adviser is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Investment Advisory Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager Investment Adviser has, or at the relevant time had, full power and authority to enter into each of this Underwriting the Investment Advisory Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager the Investment Advisory Agreement has been duly and validly authorized, executed and delivered by the Portfolio ManagerInvestment Adviser; none of the Portfolio Manager Agreements violates Investment Advisory Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager the Investment Advisory Agreement constitutes a legal, valid and binding obligation of the Portfolio ManagerInvestment 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager Investment Adviser of any Portfolio Manager the Investment Advisory Agreement nor (ii) the consummation by the Portfolio Manager Investment Adviser of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager under the Investment Advisory Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement organizational or other organizational operational documents of the Portfolio Manager Investment Adviser or any agreement or instrument to which the Portfolio Manager Investment Adviser is a party or by which the Portfolio Manager Investment Adviser is bound, 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 the Portfolio ManagerInvestment Adviser except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Adviser's ability to perform its obligations under the Investment Advisory Agreement.
(m) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, 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 Portfolio Manager Investment Adviser of its obligations under, any Portfolio Manager Agreement, as the case may be, Investment Advisory Agreement except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS New Preferred Shares by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager Investment Adviser and its business, and the statements attributable attributed to the Portfolio ManagerInvestment 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio ManagerInvestment Manager after due and appropriate inquiry, threatened against or affecting the Portfolio Manager Investment Adviser of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(p) The Investment Adviser will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreementsimilar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (Scudder Rreef Real Estate Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) ), also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each the Portfolio Manager Management Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates Management Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each the Portfolio Manager Management Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Management Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager Management 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Management Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Management Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Nicholas Applegate Convertible & Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Delaware and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Loan Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Loan Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Loan Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of any Investment Manager its duties under this Agreement;
(e) neither the execution and delivery of this Agreement nor the performance of the terms hereof or the provisions of the Loan Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, (i) its declaration of trust, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having or asserting jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the Loan Agreement applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company partnership under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.standing
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company partnership agreement or other organizational documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Pimco California Municipal Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Swap Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Swap Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Swap Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Swap Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, operating agreement or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Swap Agreement applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Investment CORP)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of Delaware and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Credit Documents applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Credit Documents;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each execute and deliver this Agreement and to perform all of this Underwriting Agreement, its obligations hereunder and under the Credit Documents applicable to the Investment Management Agreement and the Portfolio Management Agreement Manager;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of any Investment Manager Agreement its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations the terms hereof or the provisions of the Credit Documents applicable to the Investment Manager, conflicts with or results in a material breach or violation of any of the material terms or provisions of, or constitutes a material default under, any Investment Manager Agreement conflicts or will conflict with(i) its articles of organization, or results or will result in a breach of, the limited liability company agreement or other organizational documents constituent document, (ii) the terms of the Investment Manager any material indenture, contract, lease, mortgage, deed of trust, note agreement or any agreement other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Credit Documents applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusAdvisory Agreements.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Advisory Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have a material adverse effect on the condition (financial or other), assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement and the Advisory Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Advisory Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby.
(i) requires the Investment Manager 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 Manager or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager 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 Manger to perform its obligations under this Agreement and the Advisory Agreements. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyAdvisory Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Advisory Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Advisory Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and subject to applicable the qualification that the enforceability of the Investment Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAdvisory Agreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and Regulations and do not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that might should reasonably be expected to result in any have a material adverse change in effect on the ability of the Investment Manager to fulfill perform its respective obligations under any Investment Manager Agreementthis Agreement and the Advisory Agreements.
(hi) None The Investment Manager has such Permits as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto) except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the FundInvestment Manager to perform its obligation under the Advisory Agreements;
(ii) the Investment Manager 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 Manager under any such Permit, except where the revocation, termination or impairment of the Investment Manager's rights under such Permits should not reasonably be expected to have a material adverse effect on the ability of the Investment Manger to perform its obligations under the Advisory Agreements.
(j) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(k) In the event that the Fund or the Portfolio Investment Manager has made makes available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment subManager will install and maintain pre-adviser for the Fund as contemplated qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by the Portfolio Management Agreement, the Registration Statement persons other than qualified broker-dealers and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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 lawsregistered representatives thereof.
(l) Neither (i) This Agreement and the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager Advisory Agreements comply in all material respects with all applicable provisions of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the 1940 Act, the Investment Company 1940 Act or Rules and Regulations, the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Advisers Act Rules 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 misleadingRegulations.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Real Estate Income Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company partnership under the laws of the State state of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Advisory Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company partnership agreement or other organizational documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws, provided that, for the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Manager shall be deemed to be action taken, directly or indirectly, by the Investment Manager for purposes of this Section 4(h).
(i) In the event that the Fund, the Investment Manager or the Portfolio Manager has made makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Investment Manager will install and maintain pre-qualification and password-protection or similar procedures which will effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(ij) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(jk) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(mn) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
(q) 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 Portfolio Manager has not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in, or which will constitue, stabilization or manipulation of the price of the Common Shares in violation of applicable federal securities laws.
Appears in 1 contract
Samples: Underwriting Agreement (Pimco New York Municipal Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is incorporated and validly existing as a limited liability company under the laws of Maryland and has the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Swap Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Swap Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Swap Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Swap Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its articles of organization, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Swap Agreement applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Investment Corp II)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company corporation under the laws of the State of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business Investment Manager Agreements (as described in the Registration Statement and Prospectusdefined below), and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Manager Agreements, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect affect on the Investment Manager's ability to provide services to perform its obligations under the FundInvestment Manager Agreements; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Manager Agreements.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser manager for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Management Advisory Agreement and the Portfolio Management Investment Advisory Agreement (collectively, this Underwriting Agreement, the Shareholder Servicing Agreement, the Investment Management Agreement and the Portfolio Management Investment Advisory Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, under any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement charter or other organizational documents by-laws of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Manager's ability to perform its obligations under the Investment Manager Agreements.
(e) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required to be obtained by the Investment Manager on or prior to the Closing Date for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable attributed to the Investment Manager, 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(g) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(h) Except for stabilization activities conducted by the Managing Representative and except for tender offers, Share repurchases and the issuance or that 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Shares in any material adverse change in the ability violation of applicable federal securities laws.
(i) The Fund and the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available will not make any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
(ij) The Portfolio Manager Investment Adviser has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of perform its obligations under the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusInvestment Advisory Agreement, and the Portfolio Manager Investment Adviser is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualifiedqualified in order to perform its obligations under the Investment Advisory Agreement, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio ManagerInvestment Adviser's ability to provide services to perform its obligations under the FundInvestment Advisory Agreement; and the Portfolio Manager 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 in order to carry on perform its business as contemplated in obligations under the Registration Statement and the ProspectusInvestment Advisory Agreement.
(jk) The Portfolio Manager Investment Adviser is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Investment Advisory Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, Investment Adviser has full power and authority to enter into each of this Underwriting the Investment Advisory Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager the Investment Advisory Agreement has been duly and validly authorized, executed and delivered by the Portfolio ManagerInvestment Adviser; none of the Portfolio Manager Agreements violates Investment Advisory Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager the Investment Advisory Agreement constitutes a legal, valid and binding obligation of the Portfolio ManagerInvestment 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager Investment Adviser of any Portfolio Manager the Investment Advisory Agreement nor (ii) the consummation by the Portfolio Manager Investment Adviser of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager under the Investment Advisory Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement organizational or other organizational operational documents of the Portfolio Manager Investment Adviser or any agreement or instrument to which the Portfolio Manager Investment Adviser is a party or by which the Portfolio Manager Investment Adviser is bound, 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 the Portfolio ManagerInvestment Adviser except in each case for such conflicts or breaches which do not, either alone or in the aggregate, have a material adverse effect on the Investment Adviser's ability to perform its obligations under the Investment Advisory Agreement.
(mn) No consent, approval, authorization or order of any court, governmental agency or body or securities exchange or association, 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 Portfolio Manager Investment Adviser of its obligations under, any Portfolio Manager Agreement, as the case may be, Investment Advisory Agreement except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Actfederal securities laws, and (ii) may be required by the American Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager Investment Adviser and its business, and the statements attributable attributed to the Portfolio ManagerInvestment 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 misleadingmisleading (and, solely with respect to the Prospectus, in the light of the circumstances under which they were made).
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio ManagerInvestment Manager after due and appropriate inquiry, threatened against or affecting the Portfolio Manager Investment Adviser of a nature required to be disclosed in the Registration Statement or Prospectus Prospectus.
(q) Except for stabilization activities conducted by the Managing Representative and except for tender offers, Share repurchases and the issuance or that 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 not taken and will not take, directly or indirectly, any action designed, or which might reasonably be expected to cause or result in any material adverse change in the ability in, or which will constitute, stabilization or manipulation of the Portfolio Manager to fulfill its respective obligations under price of the Common Shares in violation of applicable federal securities laws.
(r) The Investment Adviser will not make any Portfolio Manager Agreementpromotional materials intended for use only by qualified broker-dealers and registered representatives thereof available by means of an Internet web site or similar electronic means.
Appears in 1 contract
Samples: Underwriting Agreement (Scudder Rreef Real Estate Fund Inc)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter andand warrants to, in and agrees with, the case of paragraph (f) also to the FundPlacement Agent that, as follows:of the date hereof and as of the Closing Date (as defined in Section 4 hereof):
(ai) The Investment Manager has been duly formed, formed and is validly existing as a limited liability company under the laws of the State of Delaware with and has full power and authority to conduct all of the activities to be conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusFinal Common Share PPM, and the Investment Manager is duly licensed and qualified to do business and is in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect affect on the Investment Manager's its ability to provide services to the FundIssuer; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the ProspectusFinal Common Share PPM.
(bii) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, Agreement and the Investment Management Agreement and the Portfolio Management Agreement (collectivelytogether, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each the Investment Manager Agreement has Agreements have been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates Management Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, enforceable in accordance with its terms, (ia) 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 (iib) except as rights to indemnity thereunder may be limited by federal or state securities laws.
(da) The Investment Manager is (i) registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Issuer as contemplated by the Investment Management Agreement or the Final Common Share PPM, and (b) each of this Agreement and the Related Agreements does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act.
(iv) Neither (ia) the execution and delivery by the Investment Manager of any Investment Manager Agreement nor (iib) the consummation by by, the Investment Manager of the transactions contemplated by, or the performance of its obligations under, under any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational governing documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(ev) No consent, approval, exemptive order, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (ia) have been obtained under the Securities Act, the Investment Company Act Act, or the Advisers Act, and (iib) may be required under foreign or state securities or "blue sky" Blue Sky laws, in connection with the purchase and distribution placement of the APS Common Shares by the Underwriters Placement Agent pursuant to this Underwriting Agreement.
(fvi) The description of the Investment Manager and its business, business and the statements attributable to the Investment Manager, Manager in the Registration Statement and the Prospectus Final Common Share PPM 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 therein, in light of the circumstances under which they were made, not misleading.
(gvii) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus Final Common Share PPM or that might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Manager or the ability of the Investment Manager to fulfill its respective obligations under the Operating Agreement or any Investment Manager Agreement.
(hviii) None The Investment Manager is in compliance and will, through the completion of the Fundtransactions contemplated in this Agreement, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required continue to be so qualified, except to in compliance with the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or and the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Private Placement Agency Agreement (Special Value Opportunities Fund LLC)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is duly formed, is organized and validly existing as a limited liability company under the laws of the State of Delaware with and has the full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the 40 Act Financing Agreements applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the 40 Act Financing Agreements;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each execute and deliver this Agreement and to perform all of this Underwriting Agreement, its obligations hereunder and under the 40 Act Financing Agreements applicable to the Investment Management Agreement and the Portfolio Management Agreement Manager;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates are in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the 40 Act Financing Agreements applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its certificate of trust, declaration of trust, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which is bound, (iii) any statute applicable to the Investment Manager is bound, or (iv) any law, decree, order, rule or regulation, or order regulation applicable to the Investment Manager of any courtcourt or regulatory, administrative or governmental instrumentalityagency, securities exchange body or association authority or arbitratorarbitrator having proper jurisdiction over the Investment Manager or its properties, whether foreign and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or domestic, the provisions of the 40 Act Financing Agreements applicable to the Investment Manager.; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Global Credit Opportunities Fund-D)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph paragraphs (f) and (n), also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company under the laws of the State of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager 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 Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each the Portfolio Manager Management Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates Management Agreement does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each the Portfolio Manager Management Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Management Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager Management 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Management Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Management Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Nicholas Applegate Convertible & Income Fund Ii)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter andand warrants to, in and agrees with, the case of paragraph (f) also to the FundPlacement Agent that, as follows:of the date hereof and as of the Closing Date (as defined in Section 4 hereof):
(ai) The Investment Manager has been duly formed, formed and is validly existing as a limited liability company under the laws of the State of Delaware with New York and has full power and authority to conduct all of the activities to be conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and ProspectusFinal PPM, and the Investment Manager is duly licensed and qualified to do business and is in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect affect on the Investment Manager's its ability to provide services to the FundIssuer; and the Investment Manager owns, possesses or has obtained (except for the Exemptive Order) 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 ProspectusFinal PPM.
(bii) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, Agreement and the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager AgreementsINVESTMENT MANAGEMENT AGREEMENT") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each this Agreement and the Investment Manager Management Agreement has have been duly and validly authorized, executed and delivered by the Investment Manager; none of this Agreement and the Investment Manager Agreements violates Management Agreement do not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each this Agreement and the Investment Manager Management Agreement constitutes a constitute legal, valid and binding obligation obligations of the Investment Manager, 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.
(da) The Investment Manager is (I) registered as an investment adviser under the Advisers Act and (II) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Issuer as contemplated by this Agreement, the Investment Management Agreement or the Final PPM, and (b) each of this Agreement and the Related Agreements to which the Investment Manager is a party does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act.
(iv) Neither (ia) the execution and delivery by the Investment Manager of any Investment Manager this Agreement or the Related Agreements to which it is a party nor (iib) the consummation by by, the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager under this Agreement or the Related Agreements to which it is a party conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational governing documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(ev) No Except for the Exemptive Order, no other consent, approval, exemptive order, authorization or order of any court, governmental agency or body or securities exchange or association, whether foreign or domestic, is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any this Agreement or the Investment Manager Management Agreement, as the case may be, except such as (ia) have been obtained under the Securities Act, the Investment Company Act Act, or the Advisers Act, and (iib) may be required under foreign or state securities or "blue sky" Blue Sky laws, in connection with the purchase and distribution placement of the APS Preferred Shares and the Notes by the Underwriters Placement Agent pursuant to this Underwriting Agreement.
(fvi) The description of the Investment Manager and its business, business and the statements attributable to the Investment Manager, Manager in the Registration Statement and the Prospectus Final PPM 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 therein, in light of the circumstances under which they were made, not misleading.
(gvii) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus Final PPM or that might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Investment Manager or the ability of the Investment Manager to fulfill its respective obligations under any this Agreement or the Investment Manager Management Agreement.
(hviii) None The Investment Manager is in compliance and will, through the completion of the Fundtransactions contemplated in this Agreement, continue to be in compliance with the provisions of the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, Company Act and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, Advisers Act except to the extent that any failure to be so qualified or be in good standing comply would not have a material adverse affect effect on the Portfolio Manager's ability to provide services to Issuer or any holder of the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the ProspectusSecurities.
(jix) The Portfolio Investment Manager is (i) duly registered as an investment adviser under represents that it has policies, procedures and internal controls in place that are reasonably designed to comply with all rules and regulations of the Investment Company Act, the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment subanti-adviser for the Fund as contemplated by the Portfolio Management Agreementmoney laundering laws and regulations applicable to it, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the including applicable provisions of the Investment Company USA PATRIOT Act or of 2001 and the Advisers Act; and assuming due authorization, execution and delivery regulations administered by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation U.S. Department of the Portfolio Manager, 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 Treasury's Office 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 lawsForeign Assets Control.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Private Placement Agency Agreement (York Enhanced Strategies Fund, LLC)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, as followsCompany that:
(a) The the Investment Manager has been is a duly formed, is organized and validly existing as a limited liability company under Delaware statutory trust and has the laws of the State of Delaware with full power and authority to conduct all of transact the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required presently engaged and is duly qualified under the laws of each jurisdiction where the conduct of its business requires, or the performance of its obligations under this Agreement and the provisions of the Swap Agreement applicable to the Investment Manager would require, such qualification, except for failures to be so qualified, except to the extent that failure to be so qualified authorized or be in good standing licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Investment Manager's , or on the ability to provide services to the Fund; and of the Investment Manager ownsto perform its obligations under, possesses or has obtained and currently maintains all governmental licenseson the validity or enforceability of, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement this Agreement and the Prospectus.applicable provisions of the Swap Agreement;
(b) The the Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of execute and deliver this Underwriting Agreement, the Investment Management Agreement and to perform all of its obligations hereunder and under the Portfolio Management Agreement Swap Agreement;
(collectively, c) this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation agreement of the Investment Manager, enforceable against it in accordance with its terms, except that the enforceability thereof may be subject to (i) subject, as to enforcement, to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' ’ rights generally and to (ii) general equitable principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) and (ii) except as rights to indemnity thereunder may be limited by neither the Investment Manager nor any of its Affiliates is in violation of any federal or state securities laws.
(d) Neither (i) law or regulation promulgated thereunder or any material listing requirements of any exchange on which it is listed and there is no charge, investigation, action, suit or proceeding before or by any court, exchange or regulatory agency pending or, to the execution and delivery best knowledge of the Investment Manager, threatened, that in either case would have a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement;
(e) neither the execution and delivery of this Agreement, nor the performance of the terms hereof or the provisions of the Swap Agreement applicable to the Investment Manager, conflicts with or results in a material breach or violation of any Investment Manager Agreement nor of the material terms or provisions of, or constitutes a material default under, (i) its declaration of trust, bylaws or other constituent document, (ii) the consummation by the Investment Manager terms of the transactions contemplated byany material indenture, or the performance contract, lease, mortgage, deed of its obligations undertrust, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company note agreement or other organizational documents evidence of the Investment Manager indebtedness or any agreement other material agreement, obligation, condition, covenant or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, or (iii) any law, rule or regulation, or order of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, statute applicable to the Investment Manager., or (iv) any law, decree, order, rule or regulation applicable to the Investment Manager of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Investment Manager or its properties, and which would have, in the case of any of clauses (ii) through (iv) of this paragraph (e), a material adverse effect upon the performance by the Investment Manager of its duties under this Agreement or the provisions of the Swap Agreement applicable to the Investment Manager; and
(ef) No no consent, approval, authorization or order of or declaration or filing with any courtgovernment, governmental agency instrumentality or body court or securities exchange or association, whether foreign or domestic, other person is required for the consummation of the transactions contemplated in, or the performance by the Investment Manager it of its obligations under, any Investment Manager Agreement, as the case may beduties hereunder, except such as (i) have been obtained under the Act, the Investment Company Act duly made or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreementobtained.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Investment Management Agreement (FS Energy & Power Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also to the Fund, as follows:
(a) The Investment Manager has been duly formed, is validly existing as a limited liability company partnership under the laws of the State state of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Investment Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(b) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Advisory Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has been duly and validly authorized, executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, valid and binding obligation of the Investment Manager, 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 Manager of any Investment Manager Agreement nor (ii) the consummation by the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company partnership agreement or other organizational documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None 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 Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws, provided that, for the sake of clarity, no action taken by an Underwriter that is an affiliate of the Investment Manager shall be deemed to be action taken, directly or indirectly, by the Investment Manager for purposes of this Section 4(h).
(i) In the event that the Fund, the Investment Manager or the Portfolio Manager has made makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Investment Manager will install and maintain pre-qualification and password-protection or similar procedures which will effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(ij) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(jk) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(kl) The Portfolio Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(lm) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(mn) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required by the New York Stock Exchange or under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS Shares by the Underwriters pursuant to this Underwriting Agreement.
(no) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(op) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
(q) 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 Portfolio Manager has not taken and will not take, directly or indirectly, any action designed, or which might 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 applicable federal securities laws.
Appears in 1 contract
Samples: Underwriting Agreement (Pimco Municipal Income Fund)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter andand warrants to, in and agrees with, the case of paragraph (f) also to the FundPlacement Agent that, as follows:of the date hereof and as of the Closing Date (as defined in Section 4 hereof):
(ai) The Investment Manager has been duly formed, formed and is validly existing as a limited liability company under the laws of the State of Delaware with New York and has full power and authority to conduct all of the activities to be conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement Final Common Share PPM and ProspectusFeeder Prospectuses, and the Investment Manager is duly licensed and qualified to do business and is in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse effect affect on the Investment Manager's its ability to provide services to the FundIssuer; and the Investment Manager owns, possesses or has obtained (except for the Exemptive Order) 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 Final Common Share PPM and the ProspectusFeeder Prospectuses.
(bii) The Investment Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Fund as contemplated by the Investment Management Agreement, the Registration Statement and the Prospectus.
(c) The Investment Manager has, or at the relevant time had, has full power and authority to enter into each of this Underwriting Agreement, Agreement and the Investment Management Agreement with the Issuer, the Delaware Investment Manager Agreement, and the Portfolio Management Cayman Investment Manager Agreement (collectively, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager AgreementsINVESTMENT MANAGEMENT AGREEMENT") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each this Agreement and the Investment Manager Management Agreement has have been duly and validly authorized, executed and delivered by the Investment Manager; none of this Agreement and the Investment Manager Agreements violates Management Agreement do not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each this Agreement and the Investment Manager Management Agreement constitutes a constitute legal, valid and binding obligation obligations of the Investment Manager, 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.
(da) The Investment Manager is (I) registered as an investment adviser under the Advisers Act and (II) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment adviser for the Issuer as contemplated by this Agreement and the Investment Management Agreement or the Final Common Share PPM, and (b) each of this Agreement and the Related Agreements to which the Investment Manager is a party does not violate in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act.
(iv) Neither (ia) the execution and delivery by the Investment Manager of any this Agreement or the Investment Manager Management Agreement nor (iib) the consummation by by, the Investment Manager of the transactions contemplated by, or the performance of its obligations under, any under this Agreement or the Investment Manager Management Agreement conflicts or will conflict with, or results or will result in a breach of, the limited liability company agreement or other organizational governing documents of the Investment Manager or any agreement or instrument to which the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment Manager.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, 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 is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Investment Manager to fulfill its respective obligations under any Investment Manager Agreement.
(h) None of the Fund, the Investment Manager or the Portfolio Manager has made available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment sub-adviser for the Fund as contemplated by the Portfolio Management Agreement, the Registration Statement and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Manager.
(m) 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 consummation of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, 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.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Private Placement Agency Agreement (York Enhanced Strategies Fund, LLC)
Representations and Warranties of the Investment Manager. The Investment Manager represents to each Underwriter and, in the case of paragraph (f) also and warrants to the Fund, Underwriters as follows:
(a) The Investment Manager has been is a corporation duly formed, is incorporated and validly existing as a limited liability company in good standing under the laws of the State of Delaware Delaware, with full corporate power and authority to conduct all of the activities conducted by itown, to own or lease all of the assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectusthe Prospectus (and any amendment or supplement to either of them), and the Investment Manager is duly licensed registered and qualified to do conduct its business and is in good standing in each jurisdiction in which it is required to be so qualifiedor place where the nature of its properties or the conduct of its business requires such registration or qualification, except to where the extent that failure to be so qualified register or be in good standing would to qualify does not have a material adverse effect on the Investment Manager's ability to provide services to the Fund; and condition (financial or other), assets or results of operations of the Investment Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary on the ability of the Investment Manager to carry on perform its business as contemplated in the Registration Statement obligations under this Agreement and the ProspectusManager Agreements.
(b) The Investment Manager is (i) duly registered with the Commission as an investment adviser under the Advisers Act and (ii) is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Investment Company 1940 Act Rules and Regulations from acting as under the investment adviser Manager Agreements for the Fund as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding which should reasonably be expected to have a material adverse effect on the registration of the Investment Management Agreement, Manager with the Registration Statement and the ProspectusCommission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Investment Manager, threatened against the Investment Manager, or to which the Investment Manager or 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 should reasonably be expected to have a material adverse effect on the condition (financial or other), assets or results of operations of the Investment Manager or on the ability of the Investment Manager to perform its obligations under this Agreement and the Manager Agreements.
(d) Neither the execution, delivery or performance of this Agreement or the Manager Agreements by the Investment Manager, nor the consummation by the Investment Manager of the transactions contemplated hereby or thereby:
(i) requires the Investment Manager to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the XXXX, 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 Manager or conflicts or will conflict with or constitutes or will constitute a material breach of or a default under the articles of incorporation, bylaws, or other organizational documents, of the Investment Manager; or
(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 the Investment Manager is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Investment Manager 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 Manager 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 Manager 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 Manger to perform its obligations under the Manager Agreements. The Investment Manager hasis not subject to any order of any court or of any arbitrator, governmental authority or at the relevant time had, administrative agency.
(e) The Investment Manager has full power and authority to enter into each of this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement (collectivelyManager Agreements; the execution and delivery of, and the performance by the Investment Manager of its obligations under, this Underwriting Agreement, the Investment Management Agreement and the Portfolio Management Agreement being referred to as the "Investment Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Investment Manager Agreement has Agreements have been duly and validly authorized, authorized by the Investment Manager; and this Agreement and the Manager Agreements have been duly executed and delivered by the Investment Manager; none of the Investment Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and and, assuming due authorization, execution and delivery by the other parties thereto, each Investment Manager Agreement constitutes a legal, constitute the valid and legally binding obligation agreements of the Investment Manager, enforceable against the Investment Manager in accordance with its their terms, (i) subject, except as enforcement of rights to enforcement, indemnity and contribution hereunder may be limited by considerations of public policy and subject to applicable the qualification that the enforceability of the Investment Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency insolvency, liquidation, receivership, conservatorship, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to by 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 lawsfair dealing.
(df) Neither (i) the execution and delivery by the The Investment Manager of any Investment Manager Agreement nor (ii) has the consummation by the Investment Manager of the transactions contemplated by, or financial resources available to it necessary for the performance of its services and obligations under, any Investment Manager Agreement conflicts or will conflict with, or results or will result as contemplated in a breach of, the limited liability company agreement or other organizational documents of the Investment Manager Prospectus (or any agreement amendment or instrument to which supplement thereto) and under this Agreement and the Investment Manager is a party or by which the Investment Manager is bound, 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 the Investment ManagerAgreements.
(e) 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 consummation of the transactions contemplated in, or the performance by the Investment Manager of its obligations under, any Investment Manager Agreement, as the case may be, except such as (i) have been obtained under the Act, the Investment Company Act or the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(fg) The description of the Investment Manager and its business, and the statements attributable to the Investment Manager, in the Registration Statement and the Prospectus comply (and any amendment or supplement thereto) complied and complies in all material respects with the requirements provisions of the Act 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Company Advisers Act Rules and do Regulations and does not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(gh) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Investment Manager, threatened against or affecting the Investment Manager of a nature required to be Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), there has not occurred any event that might should reasonably be expected to result in any have a material adverse change in effect on the ability of the Investment Manager to fulfill perform its respective obligations under any Investment this Agreement and the Manager AgreementAgreements.
(hi) None The Investment Manager has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("Investment Manager Permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment or supplement thereto) except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of the FundInvestment Manager to perform its obligation under the Manager Agreements.
(j) The Investment Manager has fulfilled and performed all its material obligations with respect to such Investment Manager 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 Manager under any such Investment Manager Permit, except where the revocation, termination or impairment of the Investment Manager's rights under such Investment Manager Permits should not reasonably be expected to have a material adverse effect on the ability of the Investment Manager to perform its obligations under the Manager Agreements.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Investment Manager has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities issued by the Fund to facilitate the sale or resale of the Shares, and the Investment Manager is not aware of any such action taken or to be taken by any affiliates of the Investment Manager.
(l) In the event that the Fund or the Portfolio Investment Manager has made makes available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means.
(i) The Portfolio Manager has been duly formed, is validly existing as a limited liability company under the laws of Delaware with full power and authority to conduct all of the activities conducted by it, to own or lease all of the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Portfolio Manager is duly licensed and qualified to do business and in good standing in each jurisdiction in which it is required to be so qualified, except to the extent that failure to be so qualified or be in good standing would not have a material adverse affect on the Portfolio Manager's ability to provide services to the Fund; and the Portfolio Manager owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Registration Statement and the Prospectus.
(j) The Portfolio Manager is (i) duly registered as an investment adviser under the Advisers Act and (ii) not prohibited by the Advisers Act or the Investment Company Act from acting as the investment subManager will install and maintain pre-adviser for the Fund as contemplated qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by the Portfolio Management Agreement, the Registration Statement persons other than qualified broker-dealers and the Prospectus.
(k) The Portfolio Manager has, or at the relevant time had, full power and authority to enter into each of this Underwriting Agreement and the Portfolio Management Agreement (collectively, this Underwriting Agreement and the Portfolio Management Agreement being referred to as the "Portfolio Manager Agreements") and to carry out all the terms and provisions hereof and thereof to be carried out by it; and each Portfolio Manager Agreement has been duly and validly authorized, executed and delivered by the Portfolio Manager; none of the Portfolio Manager Agreements violates in any material respect any of the applicable provisions of the Investment Company Act or the Advisers Act; and assuming due authorization, execution and delivery by the other parties thereto, each Portfolio Manager Agreement constitutes a legal, valid and binding obligation of the Portfolio Manager, 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.
(l) Neither (i) the execution and delivery by the Portfolio Manager of any Portfolio Manager Agreement nor (ii) the consummation by the Portfolio Manager of the transactions contemplated by, or the performance of its obligations under, any Portfolio Manager 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 Portfolio Manager or any agreement or instrument to which the Portfolio Manager is a party or by which the Portfolio Manager is bound, 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 the Portfolio Managerregistered representatives thereof.
(m) 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 This Agreement and the consummation Manager Agreements comply in all material respects with all applicable provisions of the transactions contemplated in, or the performance by the Portfolio Manager of its obligations under, any Portfolio Manager Agreement, as the case may be, except such as (i) have been obtained under the 1940 Act, the Investment Company 1940 Act or Rules and Regulations, the Advisers Act, and (ii) may be required under state securities or "blue sky" laws, in connection with the purchase and distribution of the APS by the Underwriters pursuant to this Underwriting Agreement.
(n) The description of the Portfolio Manager and its business, and the statements attributable to the Portfolio Manager, in the Registration Statement and the Prospectus comply with the requirements of the Act and the Investment Company Advisers Act Rules 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 misleadingRegulations.
(o) There is no action, suit or proceeding before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, foreign or domestic, now pending or, to the knowledge of the Portfolio Manager, threatened against or affecting the Portfolio Manager of a nature required to be disclosed in the Registration Statement or Prospectus or that might reasonably be expected to result in any material adverse change in the ability of the Portfolio Manager to fulfill its respective obligations under any Portfolio Manager Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Salomon Brothers Capital & Income Fund Inc)
