Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, and as of each Option Closing Time (if any) referred to in Section 2(b) herein, as follows: (1) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse Effect") or (B) a Fund Material Adverse Effect. (2) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package or the Prospectus. There does not exist any proceeding which could have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission. (3) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. (4) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official. (5) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law. (6) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package and the Prospectus or under this Agreement and each of the Adviser Agreements. (7) The description of the Adviser in the Registration Statement, the Disclosure Package and the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the Applicable Time, the Closing Time and as of each Option Closing Time (if any), in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading. (8) Since the date as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements. (9) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit. (10) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act. (11) Except as stated in this Agreement, the Registration Statement, the Disclosure Package or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities or any securities issued by the Fund to facilitate the sale or resale of the Securities in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser. (12) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 2 contracts
Samples: Underwriting Agreement (Energy Income & Growth Fund), Underwriting Agreement (Energy Income & Growth Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, datx xxxeof and as of each Option Closing Time Representation Date (if any) referred to as defined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 2 contracts
Samples: Sales Agreement (First Trust Energy Income & Growth Fund), Sales Agreement (First Trust Strategic High Income Fund Ii)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, hereof and as of each Option Closing Time Representation Date (if any) referred to xx xxfined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereofdxxx xereof, as of the Applicable Time, each Representation Date (as of the Closing Time referred to defined in Section 2(c7(j) herein, below) and as of each Option Closing Applicable Time (if anysuch representations and warranties to be true and correct in all material respects as of each Applicable Time) referred to in Section 2(b) herein, as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding proceeding, whether pending or, to the knowledge of the Adviser, threatened, which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Adviser's organizational documents, including the Adviser's partnership agreement, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such consents, authorizations, approvals and permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such consents, authorizations, approvals and permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such consent, authorization, approval or permit, except where such revocation, termination or impairment would not reasonably be expected to have a Adviser Material Adverse Effect.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust New Opportunities MLP & Energy Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereofhexxxx, as of the Applicable Time, each Representation Date (as of the Closing Time referred to defined in Section 2(c7(j) herein, below) and as of each Option Closing Applicable Time (if anysuch representations and warranties to be true and correct in all material respects as of each Applicable Time) referred to in Section 2(b) herein, as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding proceeding, whether pending or, to the knowledge of the Adviser, threatened, which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Adviser's organizational documents, including the Adviser's partnership agreement, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such consents, authorizations, approvals and permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such consents, authorizations, approvals and permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such consent, authorization, approval or permit, except where such revocation, termination or impairment would not reasonably be expected to have a Adviser Material Adverse Effect.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust MLP & Energy Income Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Xxxxx as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, hereof and as of each Option Closing Time Representation Date (if any) referred to as defined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, and as of each Option Closing Time (if any) referred to in Section 2(b) herein, as follows:
(1) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package or the Prospectus. There does not exist any proceeding which could have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7) The description of the Adviser in the Registration Statement, the Disclosure Package and the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the Applicable Time, the Closing Time and as of each Option Closing Time (if any), in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) Since the date as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11) Except as stated in this Agreement, the Registration Statement, the Disclosure Package or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities or any securities issued by the Fund to facilitate the sale or resale of the Securities in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Underwriting Agreement (Energy Income & Growth Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, hxxxxx and as of each Option Closing Time Representation Date (if any) referred to as defined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse Effect") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust Active Dividend Income Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, xxxx hereof and as of each Option Closing Time Representation Date (if any) referred to as defined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser AgreementsAdvisory Agreement.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements Advisory Agreement by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements Advisory Agreement or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser AgreementsAdvisory Agreement. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser AgreementsAdvisory Agreement; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements Advisory Agreement have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements Advisory Agreement have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser AgreementsAdvisory Agreement.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser AgreementsAdvisory Agreement.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of Neither this Agreement nor any of the Adviser Agreements violate Advisory Agreement violates any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust Senior Floating Rate Income Fund Ii)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Xxxxx as of the date hereof, as of the Applicable Time, each Representation Date (as of the Closing Time referred to defined in Section 2(c7(j) herein, below) and as of each Option Closing Applicable Time (if anysuch representations and warranties to be true and correct in all material respects as of each Applicable Time) referred to in Section 2(b) herein, as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust Specialty Finance & Financial Opportunities Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereofxxxxof, as of the Applicable Time, each Representation Date (as of the Closing Time referred to defined in Section 2(c7(j) herein, below) and as of each Option Closing Applicable Time (if anysuch representations and warranties to be true and correct in all material respects as of each Applicable Time) referred to in Section 2(b) herein, as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding proceeding, whether pending or, to the knowledge of the Adviser, threatened, which could reasonably be expected to have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Adviser's organizational documents, including the Adviser's partnership agreement, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5v) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6vi) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package Statement and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7vii) The description of the Adviser in the Registration Statement, the Disclosure Package and Statement or the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the each Applicable Time, the Closing Time and as of each Option Closing Time (if any)Settlement Date, in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) viii) Since the date as of which information is given in the Registration Statement, the Disclosure Package Statement or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9ix) The Adviser has such consents, authorizations, approvals and permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such consents, authorizations, approvals and permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such consent, authorization, approval or permit, except where such revocation, termination or impairment would not reasonably be expected to have a Adviser Material Adverse Effect.
(10x) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11xi) Except as stated in this Agreement, the Registration Statement, the Disclosure Package Statement or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities Placement Shares or any securities issued by the Fund to facilitate the sale or resale of the Securities Placement Shares in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12xii) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust Energy Income & Growth Fund)
Representations and Warranties with Respect to the Adviser. The Adviser represents and warrants to and agrees with the Underwriters Jones as of the date hereof, as of the Applicable Time, as of the Closing Time referred to in Section 2(c) herein, hxxxxx and as of each Option Closing Time Representation Date (if any) referred to as defined in Section 2(b7(j) herein, below) as follows:
(1i) The Adviser is a limited partnership duly organized and validly existing in good standing under the laws of the State of Illinois, with full power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Disclosure Package Statement and the Prospectus and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have (A) a material adverse effect on the condition (financial or other), general affairs, business, properties, business prospects, net assets or results of operations, whether or not occurring in the ordinary course of business, of the Adviser (an "Adviser Material Adverse EffectADVISER MATERIAL ADVERSE EFFECT") or (B) a Fund Material Adverse Effect.
(2ii) The Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Advisory Agreement for the Fund as contemplated by the Registration Statement, the Disclosure Package Statement or the Prospectus. There does not exist any proceeding which could have an Adviser Material Adverse Effect with respect to the registration of the Adviser with the Commission.
(3iii) There are no legal or governmental proceedings pending or, to the knowledge of the Adviser, threatened against the Adviser that are required to be described in the Registration Statement, the Disclosure Package Statement or the Prospectus but are not described as required or that could reasonably be expected to result in any Adviser Material Adverse Effect or that may have a material, adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements.
(4iv) Neither the execution, delivery or performance of this Agreement or any of the Adviser Agreements by the Adviser, nor the consummation by the Adviser of the transactions contemplated hereby or thereby (A) requires the Adviser to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Adviser, or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the partnership agreement or bylaws or other organizational documents of the Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any of the Adviser Agreements or any other agreement, indenture, lease or other instrument to which the Adviser is a party or by which the Adviser or any of its properties may be bound, or violates or will violate any statute, law, regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject, except in any case under clause (B) for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have an Adviser Material Adverse Effect or a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement or any of the Adviser Agreements. The Adviser is not subject to any order of any court or of any arbitrator, regulatory body, administrative agency or other governmental body, agency or official.
(5) The Adviser has full power and authority to enter into this Agreement and each of the Adviser Agreements; the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement and each of the Adviser Agreements have been duly and validly authorized by the Adviser; and this Agreement and each of the Adviser Agreements have been duly executed and delivered by the Adviser and constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law.
(6) The Adviser has the financial resources necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Disclosure Package and the Prospectus or under this Agreement and each of the Adviser Agreements.
(7) The description of the Adviser in the Registration Statement, the Disclosure Package and the Prospectus complied as of any effective date of the Registration Statement and as of the date of the Disclosure Package and the Prospectus, as applicable, and complies and will comply, as of the date hereof, the Applicable Time, the Closing Time and as of each Option Closing Time (if any), in all material respects with the provisions of the Securities Act, the Investment Company Act and the Advisers Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package and the Prospectus, in light of the circumstances under which they were made) not misleading.
(8) Since the date as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, except as otherwise stated therein, there has not occurred any event which would reasonably be expected to have a material adverse effect on the ability of the Adviser to perform its obligations under this Agreement and each of the Adviser Agreements.
(9) The Adviser has such permits as are necessary to own its property and to conduct its business in the manner described in the Disclosure Package and the Prospectus; and the Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the Adviser under any such permit.
(10) None of this Agreement nor any of the Adviser Agreements violate any applicable provisions of the Investment Company Act and Advisers Act.
(11) Except as stated in this Agreement, the Registration Statement, the Disclosure Package or the Prospectus, the Adviser has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in or which will constitute stabilization or manipulation of the price of the Securities or any securities issued by the Fund to facilitate the sale or resale of the Securities in violation of federal securities laws and the Adviser is not aware of any such action taken or to be taken by any affiliates of the Adviser.
(12) The Adviser has adopted and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act reasonably designed to prevent violation of the Advisers Act by the Adviser and its supervised persons.
Appears in 1 contract
Samples: Sales Agreement (First Trust Active Dividend Income Fund)
