Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that: (a) All information regarding the Manager in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies described in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's business, and no material deviation from such strategies, guidelines or policies is currently contemplated. (b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity. (c) 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. (d) This Agreement has been duly authorized, executed and delivered by the Manager. (e) The Management Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability. (f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement. (g) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation or operating agreement 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect. (h) 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 stockholder 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 and in the Registration Statement, Pricing Disclosure Package and Prospectus. (i) There is no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Management Agreement or the consummation of the transactions contemplated hereby or thereby. (j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect. (k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement. (l) To the knowledge of the Manager no executive officer of the Company and no executive officer or key employee of the Manager, nor any significant member of the investment teams of the Company or the Manager, plans to terminate his, her or their employment. 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. (m) The Manager (i) is not in violation of its certificate of formation or 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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. (n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting. (o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus. (p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business. (q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent. (r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect. (s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 Securities. 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that:
(a) All information regarding the Manager in or incorporated by reference in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies described in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's business, and no material deviation from such strategies, guidelines or policies is currently contemplated.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity.
(c) 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.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Management Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(g) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation or operating agreement 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder 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 and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Management Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the Manager no executive officer of the Company and no executive officer or key employee of the Manager, nor any significant member of the investment teams of the Company or the Manager, plans to terminate his, her or their employment. 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.
(m) The Manager (i) is not in violation of its certificate of formation or 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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 SecuritiesStock. 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that:
(a) All information regarding the Manager in the Registration Statement, Pricing Disclosure Package and Prospectus is derived from the Manager’s accounting or other applicable records and is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies of the Company and/or the Manager described in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's ’s business, and no material deviation from such strategies, guidelines or policies is currently contemplated.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement Agreement, the Registration Statement or the Prospectus (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, and does not own or control, directly or indirectly, any corporation, association or other entity.
(c) The Manager has full right, power and authority to execute and deliver this Agreement each of the Transaction Documents and to perform its obligations hereunderhereunder and thereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement each of the Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby has been duly and validly taken.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Each of the Management Agreement and the Registration Rights Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement...
(g) The execution, delivery and performance of this Agreement, the Management Agreement and the Registration Rights Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus thereby and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation charter or operating agreement 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement, the Management Agreement, and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is are no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement, the Management Agreement or the Management Registration Rights Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the Manager Manager, no executive officer of the Company and no executive officer or key employee of the Company or the Manager, nor any or a significant member number of members of the investment teams of the Company or the Manager, plans Manager plan to terminate his, her or their employmentemployment with his, her or their current employer. 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.
(m) The Manager (i) is not in violation of its certificate of formation charter or operating agreementby-laws, (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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 SecuritiesStock. Any certificate signed by any officer of the Manager and delivered to the Representative Representatives 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that:
(a) All information regarding the Manager in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies described in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's ’s business, and no material deviation from such strategies, guidelines or policies is currently contemplated.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity.
(c) 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.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Management Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(g) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation charter or operating agreement 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder 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 and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Management Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the Manager no executive officer of the Company and no executive officer or key employee of the Manager, nor any significant member of the investment teams of the Company or the Manager, plans to terminate his, her or their employment. 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.
(m) The Manager (i) is not in violation of its certificate of formation charter or operating agreementby-laws, (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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 Securities. Any certificate signed by any officer of the Manager and delivered to the Representative Representatives 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time Time, and each Delivery Date (as defined below)Date, and agrees with each Underwriter the Underwriters that:
(a) All 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 and allocation strategies, guidelines and policies policy with respect to the Company as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's business, and no material deviation from such strategies, guidelines or policies is currently contemplatedProspectus.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware Maryland with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs properties or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity.
(c) The Manager has full right, power and authority to execute and deliver this each of the Transaction Documents to which it is a party and the Overhead Sharing Agreement and to perform its obligations hereunderhereunder and thereunder, and all action required to be taken for the due and proper authorization, execution and delivery by it of this each of the Transaction Documents to which it is a party and the Overhead Sharing Agreement and the consummation by it of the transactions contemplated hereby and thereby has been duly and validly taken.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Each of the Management Agreement, the Investment Allocation Agreement and the Overhead Sharing Agreement has been duly authorized, and on the Initial Delivery Date will have been duly executed and delivered, by the Manager and, when duly executed and delivered in accordance with its terms by each of the Manager and constitutes other parties thereto, will constitute a valid and legally binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management AgreementEffect.
(g) The execution, delivery and performance of this Agreement, the Management Agreement, the Overhead Sharing Agreement and the Investment Advisory Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus thereby and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation charter or operating agreement 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 assetsasset, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder of the Manager, is required for the execution, delivery and performance by the Manager of this Agreement, the Management Agreement, the Investment Allocation Agreement and the Overhead Sharing Agreement and the consummation of the transactions contemplated hereby and thereby and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is are no litigation or any legal, governmental or regulatory 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 directors 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 couldwould, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or couldwould, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement, the Management Agreement, the Investment Allocation Agreement or the Management Overhead Sharing Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Managerbusinesses, except for any Permit that could would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results result in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could would not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the The Manager no has not been notified that any executive officer of the Company and no or any executive officer or key employee of the ManagerManager or Bimini, nor any or a significant member number of members of the investment teams of the Company Company, the Manager or the Manager, plans Bimini plan to terminate his, her or their employmentemployment with his, her or their current employer. 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 Company, the Manager or Bimini as described in the Management Agreement, the Registration Statement, the Pricing Disclosure Package or the Prospectus.
(m) The Manager (i) is not in violation of its certificate of formation charter or operating agreementby-laws, (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 could would not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers ActAct of 1940, as amended, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package Preliminary Prospectus and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(so) Neither the Manager nor any of its affiliates (within the meaning of Rule 144 under the Securities Act) has taken, nor taken or will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 SecuritiesStock. Any certificate signed by any officer of the Manager and delivered to the Representative Representatives 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 1 contract
Samples: Underwriting Agreement (Orchid Island Capital, Inc.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that:
(a) All information regarding the Manager in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies described in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's ’s business, and no material deviation from such strategies, guidelines or policies is currently contemplated.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity.
(c) 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.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Management Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(g) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation charter or operating agreement bylaws 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder 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 and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Management Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the Manager no executive officer of the Company and no executive officer or key employee of the Manager, nor any significant member of the investment teams of the Company or the Manager, plans to terminate his, her or their employment. 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.
(m) The Manager (i) is not in violation of its certificate of formation charter or operating agreementbylaws, (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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 SecuritiesStock. Any certificate signed by any officer of the Manager and delivered to the Representative Representatives 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
Representations and Warranties Regarding the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time and each Delivery Date (as defined below), and agrees with each Underwriter that:
(a) All information regarding the Manager in or incorporated by reference in the Registration Statement, Pricing Disclosure Package and Prospectus is true, correct and complete in all material respects. The investment and allocation strategies, guidelines and policies described in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately reflect in all material respects the investment strategies, guidelines and policies of the Manager with respect to the operation of the Company’s business as currently in effect and the current intentions of the Manager with respect to the continued and prospective operation of the Company's ’s business, and no material deviation from such strategies, guidelines or policies is currently contemplated.
(b) The Manager has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and 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 corporation 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 could 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, assets, properties, affairs or prospects of the Manager or on the Offering or consummation of any of the other transactions contemplated by this Agreement (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, does not own or control, directly or indirectly, any corporation, association or other entity.
(c) 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.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The Management Agreement has been duly authorized, executed and delivered by the Manager 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 applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability.
(f) 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 nor any development or event involving a prospective Manager Material Adverse Effect or any change, nor any development or event involving a prospective change, that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(g) The execution, delivery and performance of this Agreement by the Manager and the consummation of the transactions contemplated hereby and in the Registration Statement, Pricing Disclosure Package and Prospectus and the compliance by the Manager with its obligations under each of the foregoing 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 certificate of formation or operating agreement 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 assets, except in the case of clauses (i) and (iii) as would not reasonably be expected to have a Manager Material Adverse Effect.
(h) 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 stockholder 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 and in the Registration Statement, Pricing Disclosure Package and Prospectus.
(i) There is no litigation or any legal, governmental or regulatory 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 directors 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 could, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Management Agreement or the consummation of the transactions contemplated hereby or thereby.
(j) The Manager has such Permits as are necessary under applicable law to own its properties and conduct its business with respect to the Company now conducted or proposed in the Registration Statement, the Pricing Disclosure Package and the Prospectus to be conducted by the Manager, except for any Permit that could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect. All such Permits are in full force and effect, the Manager has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Manager Material Adverse Effect.
(k) 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, the Registration Statement, Pricing Disclosure Package and Prospectus and under this Agreement.
(l) To the knowledge of the Manager no executive officer of the Company and no executive officer or key employee of the Manager, nor any significant member of the investment teams of the Company or the Manager, plans to terminate his, her or their employment. 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.
(m) The Manager (i) is not in violation of its certificate of formation or 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 could not, in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(n) The Manager (i) makes and keeps accurate books and records and (ii) maintains and has maintained effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of the Manager’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to the Manager’s assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for the Manager’s assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the Manager’s incorporation, there has been no (i) material weakness in the Manager’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Manager’s internal control over financial reporting that has materially affected or is reasonably likely to materially affect the Manager’s internal control over financial reporting.
(o) The Manager is duly registered as an investment adviser under the Investment Advisers Act of 1940 1940, as amended (the “Investment Advisers Act”) and is not prohibited by the Investment Advisers Act, or the rules and regulations thereunder, from performing under the Management Agreement as contemplated by the Management Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p) The Manager carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is adequate for the conduct of its business and the value of its respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Manager are in full force and effect; the Manager is in compliance with the terms of such policies in all material respects; and the Manager has not received notice from any insurer or agent of such insurer that capital improvements or other expenditures (other than regular premium payments) are required or necessary to be made in order to continue such insurance; there are no claims by the Manager under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Manager has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(q) No labor disturbance by the employees of the Manager exists or, to the knowledge of the Manager, is imminent.
(r) The Manager is not in violation of or has not received notice of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated, the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(s) Neither the Manager nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is 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 SecuritiesStock. 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 1 contract
Samples: Underwriting Agreement (Five Oaks Investment Corp.)
