Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement. i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus. ii. The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity. iii. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder. iv. The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken. v. This Agreement has been duly authorized, executed and delivered by the Manager. vi. This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability. vii. Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect. viii. No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby. ix. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement. x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement. xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus. xii. The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. xiii. The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus. xiv. Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
Appears in 4 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.Underwriters that:
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. (a) The Manager has been duly organized and is validly existing and exists as a limited liability company in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and ProspectusDelaware. The Manager is duly qualified to do business and is in good standing as a foreign entity limited liability company in each jurisdiction in which its ownership the nature or lease of property or the conduct of its businesses requires business makes such qualificationqualification necessary, except where the failure for those failures to be so qualified or in good standing would not, which (individually and in the aggregate, ) could not reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). .
(b) The Manager has no subsidiaries andall requisite power and authority, with the exception of and all necessary Consents to own, lease and operate its relationship with the Company properties and conduct its business as the Company’s investment manager pursuant to the management agreement between the Company it is now being conducted and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package Statement and the ProspectusPricing Disclosure Package, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each such Consent is valid and in full force and effect, the Manager is except in each case as could not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
ivreasonably be expected to have a Material Adverse Effect. The Manager has full rightnot received written notice of any investigation or proceedings which, power and authority if decided adversely to execute and deliver this the Manager could reasonably be expected to result in the revocation of, or imposition of a materially burdensome restriction on, any such Consent.
(c) This Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This (d) The compliance by the Manager with this Agreement constitutes and the consummation of the transactions herein contemplated do not and will not (i) conflict with or result in a valid breach or violation of any of the terms and legally binding provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any Lien upon any property or assets of the Manager pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Manager is a party or by which the Manager or its properties, operations or assets may be bound, or (ii) violate or conflict with any provision of the certificate of formation or limited liability company agreement of the Manager, enforceable against or (iii) violate or conflict with any statute, law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, domestic or foreign, except in the case of clauses (i) and (iii) as could not reasonably be expected to have a Material Adverse Effect.
(e) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign, pending to which the Manager is a party or of which any property, operations or assets of the Manager is the subject that, individually or in the aggregate, if determined adversely to the Manager could reasonably be expected to have a Material Adverse Effect, (ii) to the Manager’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated and (iii) the defense of all such proceedings, litigation and arbitration against or involving the Manager could not reasonably be expected to have a Material Adverse Effect.
(f) The Management Agreement (i) has been duly and validly authorized by the Manager, (ii) has been duly and validly executed and delivered by the Manager and constitutes a legal, valid and binding obligation of the Manager, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or by equitable principles relating to enforceabilityat law) and (iii) has not been conflicted with, breached or violated.
vii. Except (g) The Manager (i) owns or possesses the right to use all Intellectual Property currently used to conduct its businesses as otherwise stated therein, since the date presently conducted and as of which information is given described in the Registration Statement, Disclosure Package Pricing Prospectus and ProspectusProspectus and (ii) has no reason to believe that the conduct of its businesses does or will conflict with, there and has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration not received any notice of or any claim of conflict with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval such right of the members of others. To the Manager’s knowledge, is required for the execution, delivery all material technical information developed by and performance by belonging to the Manager of this Agreement and that has not been patented has been kept confidential. To the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the ProspectusManager’s knowledge, there are is no actions(i) infringement by third parties of any such Intellectual Property, suits, claims, investigations or proceedings (ii) pending or, to the Manager’s knowledge, threatened action, suit, proceeding or contemplated claim by others challenging the Manager’s rights in or to which any such Intellectual Property, and the Manager is not aware of any facts which would form a reasonable basis for any such claim or (iii) pending or, to the Manager’s knowledge, threatened action, suit, proceeding or claim by others that the Manager infringes or otherwise violates any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equitypatent, before or by any federaltrademark, statecopyright, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization trade secret or other non-governmental regulatory authority that wouldproprietary rights of others, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to not aware of any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that other fact which would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectusform a reasonable basis for any such claim.
xii. (h) The Manager is not (i) is not in violation of its articles certificate of organization formation or limited liability company operating agreement, (ii) is not in defaultdefault under, and to the Manager’s knowledge no event has occurred that, with notice or lapse of time or both, would constitute such a default, default under or result in the due performance creation or observance imposition of any termLien upon any property or assets of the Manager pursuant to, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement agreements or instrument instruments to which it is a party or by which it is bound or to which any of its properties property or assets is subject subject, or (iii) is not in violation of any federalstatute, statelaw, local or foreign statute or rule, regulation, ordinance, directive, judgment, decree or any order, rule or regulation order of any arbitrator, court or governmentaljudicial, regulatory or administrative other legal or governmental agency or body body, foreign or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its businessdomestic, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation ) above for violations or default would not, defaults that could not (individually or in the aggregate, ) reasonably be expected to have a Manager Material Adverse Effect.
xiii. (i) The Manager has not taken any action, nor have any other steps been taken or have any legal proceedings been commenced, nor to the knowledge of the Manager, threatened, against the Manager, for the winding up, liquidation or dissolution of the Manager.
(j) The Manager is not prohibited by any applicable law or regulation, including without limitation the Investment Advisers 1940 Act of 1940, as amended, or and the rules and regulations thereunder, from performing acting under the Management Agreement Agreement, the Sub-Advisory Agreement, dated as of February 10, 2006, between Sharpridge Capital Management, L.P. and the Manager, and the Sub-Advisory Agreement, dated as of February 10, 2006, between Cypress CSI Advisors LLC and the Manager, as contemplated by the Management Agreement and Registration Statement, the Pricing Disclosure Package and the Prospectus.
xiv. (k) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action which constitutes or is designed to cause or that has constituted result in, or that which could reasonably be expected to constitute, cause or result in in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares. Any certificate signed by or on behalf of the StockManager and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters covered thereby.
Appears in 3 contracts
Samples: Underwriting Agreement (Cypress Sharpridge Investments, Inc.), Underwriting Agreement (Cypress Sharpridge Investments, Inc.), Underwriting Agreement (Cypress Sharpridge Investments, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
iv. The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants toto each Underwriter as of the date hereof, the Applicable Time, and each Delivery Date, and agrees with, each Agent as of with the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.Underwriters that:
i. (a) The information regarding the Manager in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Pricing Disclosure Package and Prospectus.
ii. (b) The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the (c) The Management Agreement, the investment allocation agreement among the Company, the Manager Investment Allocation Agreement and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, Overhead Sharing Agreement have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
iv. (d) The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. (e) This Agreement has been duly authorized, executed and delivered by the Manager.
vi. (f) This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. (g) Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Pricing Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. (h) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and the compliance by the Manager with its obligations hereunder will not, whether with or without the giving of notice or passage of time, (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Manager, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Manager is a party or by which the Manager is bound or to which any of the property or assets of the Manager is subject; (ii) result in any violation of the provisions of the charter or by-laws of the Manager; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Manager or any of its properties or asset, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(i) No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. Except as disclosed hereby and in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there .
(j) There are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect would, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of the transactions contemplated by this Agreementhereby.
x. (i) The Manager is and at all times has been in compliance in all material aspects with all Laws applicable to the Manager, except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (ii) the Manager possesses all such required Authorizations and such required Authorizations are valid and in full force and effect, and the Manager is not in violation of any term of any such required Authorizations, except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (iii) the Manager has not received notice that any such Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any such required Authorizations, or otherwise impair the rights of the holder of any such required Authorization, and the Manager has no knowledge that any such Governmental Authority is considering such action or that any event has occurred that allows, or after notice or lapse of time would allow, any such limitation, suspension, modification or revocation, or other impairment of the rights of the holder of any such required Authorization, except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect; and (iv) the Manager has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any such applicable Laws or any such required Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission), except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect.
(l) The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the (m) The Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither Neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Registration Statement, the Pricing Disclosure Package or the Prospectus.
xii. (n) The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. (o) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package Registration Statement, the Preliminary Prospectus and the Prospectus.
xiv. (p) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of the Manager and delivered to the Representative or counsel for the Underwriters shall be deemed a representation and warranty by the Manager as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Orchid Island Capital, Inc.), Underwriting Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. (i) The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
(ii. ) The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses business requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
(iii. ) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
(iv. ) The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. (v) This Agreement has been duly authorized, executed and delivered by the Manager.
(vi. ) The execution and delivery by the Manager of, and the performance by the Manager of its obligations under, this Agreement will not contravene (i) its articles of organization or limited liability company operating agreement, (ii) any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii) for any contraventions that would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(vii) The Management Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding agreement of, the Manager, enforceable against the Manager in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar legal requirements affecting the enforcement of creditors’ rights generally and by general principles of equity.
(viii) This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. (ix) Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. (x) No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. (xi) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. (xii) The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. (xiii) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. (xiv) The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), ) to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. (xv) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. (xvi) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares.
(i) None of the StockManager or any of its affiliates, or any director, officer, or employee thereof, or, to the Manager’s knowledge, any agent or representative of the Manager or of any of its affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (A) the Manager and each of its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (B) the Manager will not use, directly or indirectly, the proceeds of the sale of the Shares in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(xviii) The operations of the Manager are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including USA PATRIOT Act and the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
(i) None of the Manager or, to the Manager’s knowledge, any director, officer, employee, agent, affiliate or representative of the Manager, is an individual or entity (“BA Person”) that is, or is owned or controlled by one or more BA Persons that are:
(A) the subject of Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) the Manager will not, directly or indirectly, use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other BA Person:
(A) to fund or facilitate any activities or business of or with any BA Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any BA Person (including any BA Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Manager has not knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any BA Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.), Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. (i) The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
(ii. ) The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses business requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
(iii. ) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
(iv. ) The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. (v) This Agreement has been duly authorized, executed and delivered by the Manager.
(vi. ) The execution and delivery by the Manager of, and the performance by the Manager of its obligations under, this Agreement will not contravene (i) its articles of organization or limited liability company operating agreement, (ii) any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii) for any contraventions that would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(vii) The Management Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding agreement of, the Manager, enforceable against the Manager in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar legal requirements affecting the enforcement of creditors’ rights generally and by general principles of equity.
(viii) This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. (ix) Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. (x) No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. (xi) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. (xii) The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. (xiii) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. (xiv) The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), ) to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. (xv) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. (xvi) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares.
(i) None of the StockManager or any of its affiliates, or any director, officer, or employee thereof, or, to the Manager’s knowledge, any agent or representative of the Manager or of any of its affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Manager and each of its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) the Manager will not use, directly or indirectly, the proceeds of the sale of the Shares in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(xviii) The operations of the Manager are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including USA PATRIOT Act and the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
(i) None of the Manager or, to the Manager’s knowledge, any director, officer, employee, agent, affiliate or representative of the Manager, is an individual or entity (“BA Person”) that is, or is owned or controlled by one or more BA Persons that are:
(A) the subject of Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) the Manager will not, directly or indirectly, use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other BA Person:
(A) to fund or facilitate any activities or business of or with any BA Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any BA Person (including any BA Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Manager has not knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any BA Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Timeeach Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. (i) The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
(ii. ) The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses business requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
(iii. ) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
(iv. ) The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. (v) This Agreement has been duly authorized, executed and delivered by the Manager.
(vi. ) The execution and delivery by the Manager of, and the performance by the Manager of its obligations under, this Agreement will not contravene (i) its articles of organization or limited liability company operating agreement, (ii) any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii) for any contraventions that would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(vii) The Management Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding agreement of, the Manager, enforceable against the Manager in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar legal requirements affecting the enforcement of creditors’ rights generally and by general principles of equity.
(viii) This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. (ix) Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. (x) No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. (xi) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. (xii) The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. (xiii) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. (xiv) The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), ) to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. (xv) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. (xvi) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares.
(i) None of the StockManager or any of its affiliates, or any director, officer, or employee thereof, or, to the Manager’s knowledge, any agent or representative of the Manager or of any of its affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (A) the Manager and each of its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (B) the Manager will not use, directly or indirectly, the proceeds of the sale of the Shares in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(xviii) The operations of the Manager are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including USA PATRIOT Act and the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
(i) None of the Manager or, to the Manager’s knowledge, any director, officer, employee, agent, affiliate or representative of the Manager, is an individual or entity (“BA Person”) that is, or is owned or controlled by one or more BA Persons that are:
(A) the subject of Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine identified pursuant to Executive Order 14065).
(ii) the Manager will not, directly or indirectly, use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other BA Person:
(A) to fund or facilitate any activities or business of or with any BA Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any BA Person (including any BA Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Manager has not knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any BA Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.Underwriters that:
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. (a) The Manager has been duly organized and is validly existing and exists as a limited liability company in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and ProspectusDelaware. The Manager is duly qualified to do business and is in good standing as a foreign entity limited liability company in each jurisdiction in which its ownership the nature or lease of property or the conduct of its businesses requires business makes such qualificationqualification necessary, except where the failure for those failures to be so qualified or in good standing would not, which (individually and in the aggregate, ) could not reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). .
(b) The Manager has no subsidiaries andall requisite power and authority, with the exception of and all necessary Consents to own, lease and operate its relationship with the Company properties and conduct its business as the Company’s investment manager pursuant to the management agreement between the Company it is now being conducted and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package Statement and the Pricing Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each such Consent is valid and in full force and effect, the Manager is except in each case as could not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
ivreasonably be expected to have a Material Adverse Effect. The Manager has full rightnot received written notice of any investigation or proceedings which, power and authority if decided adversely to execute and deliver this the Manager could reasonably be expected to result in the revocation of, or imposition of a materially burdensome restriction on, any such Consent.
(c) This Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This (d) The compliance by the Manager with this Agreement constitutes and the consummation of the transactions herein contemplated do not and will not (i) conflict with or result in a valid breach or violation of any of the terms and legally binding provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any Lien upon any property or assets of the Manager pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Manager is a party or by which the Manager or its properties, operations or assets may be bound, or (ii) violate or conflict with any provision of the certificate of formation or limited liability company agreement of the Manager, enforceable against or (iii) violate or conflict with any statute, law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, domestic or foreign.
(e) Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus, there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign, pending to which the Manager is a party or of which any property, operations or assets of the Manager is the subject which, individually or in the aggregate, if determined adversely to the Manager could reasonably be expected to have a Material Adverse Effect; to the Manager’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated; and the defense of all such proceedings, litigation and arbitration against or involving the Manager could not reasonably be expected to have a Material Adverse Effect.
(f) The Management Agreement (i) has been duly and validly authorized by the Manager, (ii) has been duly and validly executed and delivered by the Manager and constitutes a legal, valid and binding obligation of the Manager enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or by equitable principles relating to enforceabilityat law) and (iii) has not been conflicted with or has not resulted in a breach or violation of any of its terms and provisions.
vii. Except (g) The Manager (i) owns or possesses the right to use all Intellectual Property currently used to conduct its businesses as otherwise stated therein, since the date presently conducted and as of which information is given described in the Registration Statement, Disclosure Package Pricing Prospectus and ProspectusProspectus and (ii) has no reason to believe that the conduct of its businesses does or will conflict with, there and has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration not received any notice of or any claim of conflict with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval such right of the members of others. To the Manager’s knowledge, is required for the execution, delivery all material technical information developed by and performance by belonging to the Manager of this Agreement and which has not been patented has been kept confidential. To the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the ProspectusManager’s knowledge, there are is no actions, suits, claims, investigations or proceedings infringement by third parties of any such Intellectual Property; there is no pending or, to the Manager’s knowledge, threatened action, suit, proceeding or contemplated claim by others challenging the Manager’s rights in or to which any such Intellectual Property, and the Manager is not aware of any facts which would form a reasonable basis for any such claim; and there is no pending or, to the Manager’s knowledge, threatened action, suit, proceeding or claim by others that the Manager infringes or otherwise violates any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equitypatent, before or by any federaltrademark, statecopyright, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization trade secret or other non-governmental regulatory authority that wouldproprietary rights of others, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to not aware of any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that other fact which would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectusform a reasonable basis for any such claim.
xii. (h) The Manager is not (i) is not in violation of its articles certificate of organization formation or limited liability company operating agreement, (ii) is not in defaultdefault under, and to the Manager’s knowledge no event has occurred thatwhich, with notice or lapse of time or both, would constitute such a default, default under or result in the due performance creation or observance imposition of any termLien upon any property or assets of the Manager pursuant to, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties property or assets is subject subject, or (iii) is not in violation of any federalstatute, statelaw, local or foreign statute or rule, regulation, ordinance, directive, judgment, decree or any order, rule or regulation order of any arbitrator, court or governmentaljudicial, regulatory or administrative other legal or governmental agency or body body, foreign or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its businessdomestic, except (in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation ) above) for violations or default would not, defaults that could not (individually or in the aggregate, ) reasonably be expected to have a Manager Material Adverse Effect.
xiii. (i) The Manager has not taken any action, nor have any other steps been taken or have any legal proceedings been commenced, nor to the knowledge of the Manager, threatened, against the Manager, for the winding up, liquidation or dissolution of the Manager.
(j) The Manager is not prohibited by any applicable law or regulation, including without limitation the Investment Advisers 1940 Act of 1940, as amended, or and the rules and regulations thereunder, from performing acting under the Management Agreement Agreement, the Sub-Advisory Agreement, dated as of February 10, 2006, between Sharpridge Capital Management, L.P. and the Manager, and the Sub-Advisory Agreement, dated as of February 10, 2006, between Cypress CSI Advisors LLC and the Manager, as contemplated by the Management Agreement and Registration Statement, the Disclosure Package Pricing Prospectus and the Prospectus.
xiv. (k) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action which constitutes or is designed to cause or that has constituted result in, or that which could reasonably be expected to constitute, cause or result in in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares. Any certificate signed by or on behalf of the StockManager and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Cypress Sharpridge Investments, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. The Manager has been duly organized and is validly existing and in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses business requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
iv. The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
Appears in 1 contract
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.Underwriters that:
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. (a) The Manager has been duly organized and is validly existing and exists as a limited liability company in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and ProspectusDelaware. The Manager is duly qualified to do business and is in good standing as a foreign entity limited liability company in each jurisdiction in which its ownership the nature or lease of property or the conduct of its businesses requires business makes such qualificationqualification necessary, except where the failure for those failures to be so qualified or in good standing would not, which (individually and in the aggregate, ) could not reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). .
(b) The Manager has no subsidiaries andall requisite power and authority, with the exception of and all necessary Consents to own, lease and operate its relationship with the Company properties and conduct its business as the Company’s investment manager pursuant to the management agreement between the Company it is now being conducted and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package Statement and the Pricing Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each such Consent is valid and in full force and effect, the Manager is except in each case as could not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
ivreasonably be expected to have a Material Adverse Effect. The Manager has full rightnot received written notice of any investigation or proceedings which, power and authority if decided adversely to execute and deliver this the Manager could reasonably be expected to result in the revocation of, or imposition of a materially burdensome restriction on, any such Consent.
(c) This Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This (d) The compliance by the Manager with this Agreement constitutes and the consummation of the transactions herein contemplated do not and will not (i) conflict with or result in a valid breach or violation of any of the terms and legally binding provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any Lien upon any property or assets of the Manager pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Manager is a party or by which the Manager or its properties, operations or assets may be bound, or (ii) violate or conflict with any provision of the certificate of formation or limited liability company agreement of the Manager, enforceable against or (iii) violate or conflict with any statute, law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, domestic or foreign, except in the case of clauses (i) and (iii) as could not reasonably be expected to have a Material Adverse Effect.
(e) Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus, there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign, pending to which the Manager is a party or of which any property, operations or assets of the Manager is the subject which, individually or in the aggregate, if determined adversely to the Manager could reasonably be expected to have a Material Adverse Effect; to the Manager’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated; and the defense of all such proceedings, litigation and arbitration against or involving the Manager could not reasonably be expected to have a Material Adverse Effect.
(f) The Management Agreement (i) has been duly and validly authorized by the Manager, (ii) has been duly and validly executed and delivered by the Manager and constitutes a legal, valid and binding obligation of the Manager enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or by equitable principles relating to enforceabilityat law) and (iii) has not been conflicted with or has not been breached or violated.
vii. Except (g) The Manager (i) owns or possesses the right to use all Intellectual Property currently used to conduct its businesses as otherwise stated therein, since the date presently conducted and as of which information is given described in the Registration Statement, Disclosure Package Pricing Prospectus and ProspectusProspectus and (ii) has no reason to believe that the conduct of its businesses does or will conflict with, there and has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration not received any notice of or any claim of conflict with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval such right of the members of others. To the Manager’s knowledge, is required for the execution, delivery all material technical information developed by and performance by belonging to the Manager of this Agreement and which has not been patented has been kept confidential. To the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the ProspectusManager’s knowledge, there are is no actions, suits, claims, investigations or proceedings infringement by third parties of any such Intellectual Property; there is no pending or, to the Manager’s knowledge, threatened action, suit, proceeding or contemplated claim by others challenging the Manager’s rights in or to which any such Intellectual Property, and the Manager is not aware of any facts which would form a reasonable basis for any such claim; and there is no pending or, to the Manager’s knowledge, threatened action, suit, proceeding or claim by others that the Manager infringes or otherwise violates any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equitypatent, before or by any federaltrademark, statecopyright, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization trade secret or other non-governmental regulatory authority that wouldproprietary rights of others, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to not aware of any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that other fact which would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectusform a reasonable basis for any such claim.
xii. (h) The Manager is not (i) is not in violation of its articles certificate of organization formation or limited liability company operating agreement, (ii) is not in defaultdefault under, and to the Manager’s knowledge no event has occurred thatwhich, with notice or lapse of time or both, would constitute such a default, default under or result in the due performance creation or observance imposition of any termLien upon any property or assets of the Manager pursuant to, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement agreements or instrument instruments to which it is a party or by which it is bound or to which any of its properties property or assets is subject subject, or (iii) is not in violation of any federalstatute, statelaw, local or foreign statute or rule, regulation, ordinance, directive, judgment, decree or any order, rule or regulation order of any arbitrator, court or governmentaljudicial, regulatory or administrative other legal or governmental agency or body body, foreign or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its businessdomestic, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation ) above for violations or default would not, defaults that could not (individually or in the aggregate, ) reasonably be expected to have a Manager Material Adverse Effect.
xiii. (i) The Manager has not taken any action, nor have any other steps been taken or have any legal proceedings been commenced, nor to the knowledge of the Manager, threatened, against the Manager, for the winding up, liquidation or dissolution of the Manager.
(j) The Manager is not prohibited by any applicable law or regulation, including without limitation the Investment Advisers 1940 Act of 1940, as amended, or and the rules and regulations thereunder, from performing acting under the Management Agreement Agreement, the Sub-Advisory Agreement, dated as of February 10, 2006, between Sharpridge Capital Management, L.P. and the Manager, and the Sub-Advisory Agreement, dated as of February 10, 2006, between Cypress CSI Advisors LLC and the Manager, as contemplated by the Management Agreement and Registration Statement, the Disclosure Package Pricing Prospectus and the Prospectus.
xiv. (k) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action which constitutes or is designed to cause or that has constituted result in, or that which could reasonably be expected to constitute, cause or result in in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares. Any certificate signed by or on behalf of the StockManager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Cypress Sharpridge Investments, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.
i. (i) The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
(ii. ) The Manager has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and Prospectus. The Manager is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses business requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). The Manager has no subsidiaries and, with the exception of its relationship with the Company as the Company’s investment manager pursuant to the management agreement between the Company and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
(iii. ) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each is in full force and effect, the Manager is not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
(iv. ) The Manager has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. (v) This Agreement has been duly authorized, executed and delivered by the Manager.
(vi. ) The execution and delivery by the Manager of, and the performance by the Manager of its obligations under, this Agreement will not contravene (i) its articles of organization or limited liability company operating agreement, (ii) any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii) for any contraventions that would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(vii) The Management Agreement has been duly authorized, executed and delivered by, and constitutes a valid and legally binding agreement of, the Manager, enforceable against the Manager in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar legal requirements affecting the enforcement of creditors’ rights generally and by general principles of equity.
(viii) This Agreement constitutes a valid and legally binding agreement of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
vii. (ix) Except as otherwise stated therein, since the date as of which information is given in the Registration Statement, Disclosure Package and Prospectus, there has been no Manager Material Adverse Effect.
viii. (x) No consent, approval, authorization or order of, or filing or registration of or with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval of the members of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement and the consummation of the transactions contemplated hereby.
ix. (xi) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or, to the Manager’s knowledge, any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization or other non-governmental regulatory authority that would, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. (xii) The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. (xiii) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectus.
xii. (xiv) The Manager (i) is not in violation of its articles of organization or limited liability company operating agreement, (ii) is not in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is not in violation of any federal, state, local or foreign statute or rule, or any order, rule or regulation of any arbitrator, court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), ) to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
xiii. (xv) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Disclosure Package and the Prospectus.
xiv. (xvi) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares.
(i) None of the StockManager or any of its affiliates, or any director, officer, or employee thereof, or, to the Manager’s knowledge, any agent or representative of the Manager or of any of its affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (A) the Manager and each of its affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (B) the Manager will not use, directly or indirectly, the proceeds of the sale of the Shares in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(xviii) The operations of the Manager are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including USA PATRIOT Act and the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
(i) None of the Manager or, to the Manager’s knowledge, any director, officer, employee, agent, affiliate or representative of the Manager, is an individual or entity (“BA Person”) that is, or is owned or controlled by one or more BA Persons that are:
(A) the subject of Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) the Manager will not, directly or indirectly, use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other BA Person:
(A) to fund or facilitate any activities or business of or with any BA Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any BA Person (including any BA Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past ten years, the Manager has not knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any BA Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Equity Distribution Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to, and agrees with, each Agent as of the Execution Time, each Representation Date and each Applicable Time that the following representations and warranties are repeated and deemed to be made pursuant to this Agreement.Underwriters that:
i. The information regarding the Manager in the Registration Statement, Disclosure Package and Prospectus is true, correct and complete in all material respects. The Manager has no plan or intention to materially alter its investment policy with respect to the Company as described in the Registration Statement, Disclosure Package and Prospectus.
ii. (a) The Manager has been duly organized and is validly existing and exists as a limited liability company in good standing as limited liability company under the laws of the State of Maryland with full power and authority to conduct its business as described in the Registration Statement, Pricing Disclosure Package and ProspectusDelaware. The Manager is duly qualified to do business and is in good standing as a foreign entity limited liability company in each jurisdiction in which its ownership the nature or lease of property or the conduct of its businesses requires business makes such qualificationqualification necessary, except where the failure for those failures to be so qualified or in good standing would not, which (individually and in the aggregate, ) could not reasonably be expected to have a material adverse effect on the business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Manager (a “Manager Material Adverse Effect”). .
(b) The Manager has no subsidiaries andall requisite power and authority, with the exception of and all necessary Consents to own, lease and operate its relationship with the Company properties and conduct its business as the Company’s investment manager pursuant to the management agreement between the Company it is now being conducted and the Manager, entered into on February 20, 2013 (the “Management Agreement”), does not own or control, directly or indirectly, any corporation, association or other entity.
iii. Except as disclosed in the Registration Statement, the Disclosure Package Statement and the ProspectusPricing Disclosure Package, the Management Agreement, the investment allocation agreement among the Company, the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013 and the overhead sharing agreement between the Manager and Bimini Capital Management, Inc. entered into on February 20, 2013, have not been amended or modified since originally executed by the parties thereto and each such Consent is valid and in full force and effect, the Manager is except in each case as could not in breach of any provision of any such agreement and the Manager has not waived any obligation, duty or right of any party thereunder.
ivreasonably be expected to have a Material Adverse Effect. The Manager has full rightnot received written notice of any investigation or proceedings which, power and authority if decided adversely to execute and deliver this the Manager could reasonably be expected to result in the revocation of, or imposition of a materially burdensome restriction on, any such Consent.
(c) This Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
v. This Agreement has been duly authorized, executed and delivered by the Manager.
vi. This (d) The compliance by the Manager with this Agreement constitutes and the consummation of the transactions herein contemplated do not and will not (i) conflict with or result in a valid breach or violation of any of the terms and legally binding provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any Lien upon any property or assets of the Manager pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Manager is a party or by which the Manager or its properties, operations or assets may be bound, or (ii) violate or conflict with any provision of the certificate of formation or limited liability company agreement of the Manager, enforceable against or (iii) violate or conflict with any statute, law, rule, regulation, ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, domestic or foreign, except in the case of clauses (i) and (iii) as could not reasonably be expected to have a Material Adverse Effect.
(e) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there is no judicial, regulatory, arbitral or other legal or governmental proceeding or other litigation or arbitration, domestic or foreign, pending to which the Manager is a party or of which any property, operations or assets of the Manager is the subject that, individually or in the aggregate, if determined adversely to the Manager could reasonably be expected to have a Material Adverse Effect, (ii) to the Manager’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated and (iii) the defense of all such proceedings, litigation and arbitration against or involving the Manager could not reasonably be expected to have a Material Adverse Effect.
(f) The Management Agreement (i) has been duly and validly authorized by the Manager, (ii) has been duly and validly executed and delivered by the Manager and constitutes a legal, valid and binding obligation of the Manager, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or by equitable principles relating to enforceabilityat law) and (iii) has not been conflicted with, breached or violated.
vii. Except (g) The Manager (i) owns or possesses the right to use all Intellectual Property currently used to conduct its businesses as otherwise stated therein, since the date presently conducted and as of which information is given described in the Registration Statement, Disclosure Package Pricing Prospectus and ProspectusProspectus and (ii) has no reason to believe that the conduct of its businesses does or will conflict with, there and has been no Manager Material Adverse Effect.
viii. No consent, approval, authorization or order of, or filing or registration not received any notice of or any claim of conflict with, any federal, state, local or foreign court or governmental, regulatory or administrative agency or body or any self-regulatory organization or other non-governmental regulatory authority, or approval such right of the members of others. To the Manager’s knowledge, is required for the execution, delivery all material technical information developed by and performance by belonging to the Manager of this Agreement and that has not been patented has been kept confidential. To the consummation of the transactions contemplated hereby.
ix. Except as disclosed in the Registration Statement, the Disclosure Package and the ProspectusManager’s knowledge, there are is no actions(i) infringement by third parties of any such Intellectual Property, suits, claims, investigations or proceedings (ii) pending or, to the Manager’s knowledge, threatened action, suit, proceeding or contemplated claim by others challenging the Manager’s rights in or to which any such Intellectual Property, and the Manager is not aware of any facts which would form a reasonable basis for any such claim or (iii) pending or, to the Manager’s knowledge, threatened action, suit, proceeding or claim by others that the Manager infringes or otherwise violates any of its members or officers is or would be a party or of which any of its properties is or would be subject at law or in equitypatent, before or by any federaltrademark, statecopyright, local or foreign governmental, regulatory or administrative agency or body, or any self-regulatory organization trade secret or other non-governmental regulatory authority that wouldproprietary rights of others, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated by this Agreement.
x. The Manager has the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Management Agreement, Disclosure Package and Prospectus and under this Agreement.
xi. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Manager has not been notified that any executive officer of the Company or any executive officer or key employee of the Manager, or any member of the investment teams of the Company or the Manager plan to terminate his, her or their employment with his, her or their current employer. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Manager nor any executive officer or key employee of the Manager is subject to not aware of any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that other fact which would be violated by the present or proposed business activities of the Company or the Manager as described in the Management Agreement, the Disclosure Package or the Prospectusform a reasonable basis for any such claim.
xii. (h) The Manager is not (i) is not in violation of its articles certificate of organization formation or limited liability company operating agreement, (ii) is not in defaultdefault under, and to the Manager’s knowledge no event has occurred that, with notice or lapse of time or both, would constitute such a default, default under or result in the due performance creation or observance imposition of any termLien upon any property or assets of the Manager pursuant to, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement agreements or instrument instruments to which it is a party or by which it is bound or to which any of its properties property or assets is subject subject, or (iii) is not in violation of any federalstatute, statelaw, local or foreign statute or rule, regulation, ordinance, directive, judgment, decree or any order, rule or regulation order of any arbitrator, court or governmentaljudicial, regulatory or administrative other legal or governmental agency or body body, foreign or any self-regulatory organization or other non-governmental regulatory authority having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its businessdomestic, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation ) above for violations or default would not, defaults that could not (individually or in the aggregate, ) reasonably be expected to have a Manager Material Adverse Effect.
xiii. (i) The Manager has not taken any action, nor have any other steps been taken or have any legal proceedings been commenced, nor to the knowledge of the Manager, threatened, against the Manager, for the winding up, liquidation or dissolution of the Manager.
(j) The Manager is not prohibited by any applicable law or regulation, including without limitation the Investment Advisers 1940 Act of 1940, as amended, or and the rules and regulations thereunder, from performing acting under the Management Agreement Agreement, the Sub-Advisory Agreement, dated as of February 10, 2006, between Sharpridge Capital Management, L.P. and the Manager, and the Sub-Advisory Agreement, dated as of February 10, 2006, between Cypress CSI Advisors LLC and the Manager, as contemplated by the Management Agreement and Registration Statement, the Pricing Disclosure Package and the Prospectus.
xiv. (k) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken or will taketaken, directly or indirectly, any action which constitutes or is designed to cause or that has constituted result in, or that which could reasonably be expected to constitute, cause or result in in, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares Shares. Any certificate signed by or on behalf of the StockManager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Cypress Sharpridge Investments, Inc.)
