Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows: (a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager. (b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). (c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles. (d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement. (e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading. (f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement. (g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus. (h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit. (i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations. (j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject. (k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager. (l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 12 contracts
Sources: Underwriting Agreement (Nuveen Insured California Tax Free Advantage Municipal Fund), Underwriting Agreement (Nuveen Insured Massachuset Tax Free Advantage Municipal Fund), Underwriting Agreement (Nuveen North Carolina Dividend Advantage Municipal Fund 3)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as of each Representation Date as follows:
(ai) The information concerning the Manager and its affiliates (other than the Company and its subsidiaries) included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus is true and correct in all material respects.
(ii) The Manager is a corporation has been duly organized and is validly existing as a limited liability company and is in good standing under the laws of Delaware. The Manager is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which the State character or location of Delawareits properties (owned, with full corporate leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate have a Material Adverse Effect. The Manager has all requisite power and authority authority, and all necessary Governmental Licenses, to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and it 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 qualificationnow being conducted, except where the failure so to register or to qualify would possess such Governmental Licenses will not in the aggregate have a materialMaterial Adverse Effect, adverse effect on and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed or incorporated by reference in the condition (financial or other)Registration Statement, business, properties, net assets or results of operations of the ManagerGeneral Disclosure Package and the Prospectus.
(biii) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this This Agreement and the Management Agreement have each been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the Manager. The Management Agreement constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(div) The Manager has the financial resources available to it necessary for the performance is not (i) in violation of its services and obligations as contemplated charter or limited liability company agreement or (ii) in the Registration Statementdefault under, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowswhich, or after with notice or lapse of time or both, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any constitute such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon upon, any property or assets of the Manager or any of its subsidiaries pursuant to the terms to, any indenture, mortgage, deed of any trust, loan agreement or other agreement or instrument to which it is a party or by which it may be is bound or to which any of the its property or assets is subject or in violation in any respect of any statute or any judgment, decree, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Manager or any of its subsidiaries or any of their properties or assets, except in the case of (ii) above any default or event that would not have a Material Adverse Effect.
(v) Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no legal or governmental proceeding to which the Manager or any of its subsidiaries is a party, or of which any property of the Manager or any of its subsidiaries is subjectthe subject which, singularly or in the aggregate, if determined adversely to the Manager or any of its subsidiaries, are reasonably likely to have a Material Adverse Effect, and to the best of the Manager’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others.
(kvi) Except as stated in this Agreement and No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder which have not been made or the failure of which to have been made in the Prospectus aggregate would not have a Material Adverse Effect.
(and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the vii) The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from acting under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install General Disclosure Package and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Prospectus.
Appears in 10 contracts
Sources: Underwriting Agreement (New Senior Investment Group Inc.), Underwriting Agreement (Newcastle Investment Corp), Underwriting Agreement (Newcastle Investment Corp)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as followsand agrees with the Sales Agent that:
(a) The Manager has been duly formed and is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign limited liability company in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a material, material adverse effect on the condition (financial or other)business, businessassets, properties, net assets prospects, financial condition or results of operations operation of the ManagerManager and its subsidiaries, taken as a whole (a “Manager Material Adverse Effect”), and has full limited liability company power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into and perform its obligations under the Management Agreement, and the Manager is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(b) The Manager is This Agreement has been duly registered as an investment adviser under the Advisers Act and is not prohibited validly authorized and validly executed and delivered by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Manager.
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have has been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principlesprinciples and except to the extent that any indemnification provision thereof may be limited by public policy considerations in respect thereof.
(d) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statement, the Prospectus (time or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any material, adverse change in the condition (financial breach of or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery formation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager operating agreement or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Manager Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time or both would result in any breach of or constitute a default under), regulation (i) any provision of the certificate of formation or filing operating agreement of the Manager, (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or judgmentcredit agreement, injunctionnote, order lease or decree applicable other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Manager Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(i) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (ii) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms Manager, (iii) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected and (iv) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained, or as may be required under the Act or state securities laws or the rules of FINRA.
(f) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Manager Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus, except as such as could not have a Manager Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Manager Material Adverse Effect.
(g) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the is subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Manager is subjectMaterial Adverse Effect.
(kh) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing its obligations under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofManagement Agreement as described in the Prospectus.
Appears in 10 contracts
Sources: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Representations and Warranties of the Manager. The Manager represents --------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 8 contracts
Sources: Underwriting Agreement (Nuveen New Jersey Dividend Advantage Municipal Fund 2), Underwriting Agreement (Nuveen Insured New York Dividend Advantage Municipal Fund), Underwriting Agreement (Nuveen Arizona Dividend Advantage Municipal Fund 2)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with the Agent as of the date of this Agreement and as of the date of this Agreement, as of each Representation Date, as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Underwriter as followsSettlement Date, unless such representation, warranty or agreement specifies a different date or time:
(a) The a. as of the date of this Agreement, the Manager has no plan or intention to materially alter its investment policy, investment allocation policy or exclusivity policy with respect to the Company as described in the Registration Statement or the Prospectus;
b. the Manager has been duly formed and is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of the State its respective jurisdiction of Delaware, formation with full corporate power and authority to own, lease and operate own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, and to execute and deliver this Agreement and to consummate the transactions contemplated herein;
c. the Manager is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Manager (any such effect or change, where the context so requires, is hereinafter called a “Manager Material Adverse Effect” or “Manager Material Adverse Change”);
d. the Manager is in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. the Manager is not in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its operating agreement, bylaws or other similar Organizational Documents (the “Manager Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Manager is a party or by which any of it or its respective properties is bound, or (iii) any Law applicable to the Manager, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Manager Material Adverse Effect;
f. the execution, delivery and performance of this Agreement, and consummation of the transactions contemplated herein, and compliance by the Manager with its obligations hereunder and the Management Agreement will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Manager Organizational Documents, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Manager is a party or by which any of it or its respective properties may be bound or affected, or under any Law applicable to the Manager, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Manager Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Manager;
g. this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and each is a legal, valid and binding agreement of the Manager enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. the Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 qualificationProspectus, except where to the extent that any failure so to register have any such licenses, authorizations, consents or approvals, to make any such filings or to qualify obtain any such authorizations, consents or approvals would not not, individually or in the aggregate, have a material, adverse effect on Manager Material Adverse Effect; the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, set forth in the Registration Statement and the Prospectus (Prospectus; the Manager is not in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager the effect of which could result in a Manager Material Adverse Change; and any amendment no such license, authorization, consent or supplement thereto) complied and comply approval contains a materially burdensome restriction that is not adequately disclosed in all material respects with the provisions each of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations Registration Statement and the Advisers Act Rules and Regulations and did Prospectus;
i. the Manager does not and have any employees;
j. none of the Manager or any of its respective directors, officers, representatives or affiliates has taken, nor will not contain an untrue statement take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Placement Shares or to result in a material fact or omit violation at Regulation M under the Exchange Act;
k. the Manager maintains a system of internal accounting controls sufficient to state a material fact required provide reasonable assurance that (A) the transactions that may be effectuated by it on behalf of the Company pursuant to be stated therein or necessary to make the statements therein (its duties set forth in the case of a prospectus, Management Agreement will be executed in light of accordance with management’s general or specific authorization and (B) access to the circumstances under which they were made) not misleading.Company’s assets is permitted only in accordance with its management’s general or specific authorization;
(f) There l. there are no legal actions, suits, proceedings, inquiries or governmental proceedings investigations pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is respective officers and directors or to which the properties, assets or rights of any such entity are subject, that are at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Manager Material Adverse Effect; and
m. the Manager is not required to be register as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and is not prohibited by the Advisers Act, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in , the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 8 contracts
Sources: At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.)
Representations and Warranties of the Manager. The Manager represents and warrants to the Selling Agent as of the date hereof and as of each Underwriter Closing Time as follows:
(a) The Manager is a corporation has been duly organized and formed, validly existing and, where applicable, in good standing under the laws of the State jurisdiction of Delaware, its formation with full corporate power and authority to ownauthority, lease and operate its properties and to conduct its business as described in its organizational documents. Subject as aforesaid, the Registration Statement and the Prospectus (and any amendment Manager has been duly licensed or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires in which such registration or qualificationqualification is required, except where the failure to so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill perform its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the ProspectusOffering Materials.
(hb) The Each of this Agreement and the Operative Agreements to which it is a party (the "Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permitsOperative Agreements") as are necessary to own its property has been duly authorized, executed and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, delivered by or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights on behalf of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions constitutes a valid and legally binding obligation of the 1940 ActManager enforceable against the Manager in accordance with its terms, except as the 1940 Act Rules same may be subject to the effects of (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and Regulationsother similar laws now or hereafter in effect relating to or affecting creditors' rights generally, the Advisers Act (B) general principles of equity (regardless of whether considered in a proceeding at law or in equity) and the Advisers Act Rules (C) an implied covenant of good faith and Regulations.
(j) Neither fair dealing; and the execution, delivery or and performance by the Manager of and compliance with this Agreement or and the Management Agreement execution and delivery and performance by the ManagerManager of and compliance with each of the Manager Operative Agreements, nor and the consummation by the Manager of the transactions contemplated hereby hereunder or thereby (A) requires any consentthereunder, approvalwill not conflict with, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of any of the terms or provisions of, or constitute, with or without the giving of notice or lapse of time or both, a default under, or result in the Certificate creation or imposition of Incorporation any lien, charge or By-Laws encumbrance upon any of the property or assets of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default underpursuant to, any material contract, indenture, mortgage, loan agreement, indenturenote, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject, nor will such action result in any violation of or conflict with the terms or provisions of the other organizational documents of the Manager, any law, order, judgment, decree, rule or regulation applicable to the Manager; and no consent, approval, authorization or order of, or any filing or declaration with, any court or governmental authority or agency, national securities exchange, securities or futures association is required for the consummation by the Manager of the transactions contemplated by this Agreement or each of the Manager Operative Agreements, except such filings as may be required under state securities or Blue Sky laws or by Regulation D under the Securities Act, which will be timely filed.
(kc) Except The Manager has the financial resources available necessary for the performance of its obligations as stated contemplated herein and in the Fund's Offering Memorandum.
(d) The Manager is not in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation applicable to it of any court or governmental or self-regulatory agency or body with jurisdiction over it, the effect of which might impair or adversely affect in any material respect the ability of the Manager to function as investment manager or perform its obligations under any of the Manager Operative Agreements or to perform its obligations as contemplated in the Fund's Offering Memorandum.
(e) Since the date of the Fund's Offering Memorandum, there has been no material adverse change, except as otherwise contemplated therein, in the condition, financial or otherwise, business affairs or business prospects of the Manager that would materially impact the nature or quality of the services it is obligated to provide to the Fund under any of the Manager Operative Agreements as contemplated in the Fund's Offering Memorandum and, except as disclosed in the Fund's Offering Memorandum, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened against or affecting the Manager or any of its members or officers, which adverse change, action, suit or proceeding would impair or adversely affect in any material respect the ability of the Manager to function as an investment manager or perform its obligations under any of the Manager Operative Agreements as contemplated in the Fund's Offering Memorandum.
(f) Unless exempted or excluded from registration, the Manager is registered with the CFTC as a commodity pool operator and commodity trading advisor and is a member of the U.S. National Futures Association ("NFA") and each of its principals and associated persons (as defined in the U.S. Commodity Exchange Act and regulations thereunder) is registered with the CFTC as such.
(g) The Manager is registered with the U.S. Securities and Exchange Commission (the "Commission") as an investment adviser and has all required state securities and commodities registrations to carry out its obligations under this Agreement and the Manager Operative Agreements.
(h) Each partner, officer or employee of the Manager who is not currently and has not been registered as a principal (as defined in the Prospectus (U.S. Commodity Exchange Act and in any amendment or supplement thereto), regulations thereunder) of the Manager has not taken and will not take, directly or indirectly, engage in any action designed activities which would require such individual to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager register as a principal until such time as such individual is not aware of any such action taken or to be taken by any affiliates registered as a principal of the Manager.
(li) In Each partner, officer or employee of the event that Manager who has not been and is not currently registered as an associated person (as defined in the U.S. Commodity Exchange Act and regulations thereunder) of the Manager has not and will not engage in any activities which would require such individual to register as an associated person, until such time as such individual is registered as an associated person of the Manager.
(j) Each of the Manager's registered principals and associated persons (as defined in the U.S. Commodity Exchange Act and regulations thereunder) has in the past performed and will perform their responsibilities in connection with the operation of the Fund or in compliance in all material respects with CFTC and NFA requirements applicable thereto.
(k) Any certificate signed by any executive officer of the Manager makes available any promotional materials intended and delivered to the Selling Agent or to counsel for use only the Selling Agent shall be deemed a representation and warranty by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access the Selling Agent as to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe matters covered thereby.
Appears in 8 contracts
Sources: Placement Agency Agreement (Excelsior Private Markets Fund III (TI), LLC), Placement Agency Agreement (Excelsior Private Markets Fund III (TE), LLC), Placement Agency Agreement (Excelsior Private Markets Fund II (TI), LLC)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 6 contracts
Sources: Underwriting Agreement (Nuveen Dividend Advantage Municipal Fund 3), Underwriting Agreement (Nuveen Connecticut Dividend Advantage Municipal Fund), Underwriting Agreement (Nuveen Maryland Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter the Selling Agent as follows:
(a) The Each Company has been formed pursuant to a Certificate of Formation (each a "Certificate of Formation") and a Limited Liability Company Operating Agreement (each an "Operating Agreement") which provide for the subscription for and sale of each Company's units of limited liability company interest ("Units") in classes; all action required to be taken by the Manager and each Company as a condition to the sale of the Units to subscribers who qualify as "Accredited Investors" within the meaning of the Securities Act of 1933, as amended (the "1933 Act") has been, or prior to the Initial and each Additional Closing Time (as defined in Section 2 hereof) will have been taken, and, upon payment of the consideration therefor specified in all accepted FuturesAccess Program Subscription and Exchange Agreements and Signature Pages thereto (collectively, the "Subscription Agreements"), the Units will constitute valid limited liability company interests in a Company.
(b) Each Company is a corporation limited liability company duly organized pursuant to a Certificate of Formation and the DLLCA and validly existing in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business and operations, as described in its Memorandum; each Company has received (or will receive prior to the Registration Statement and Initial Closing Time) a certificate of authority to do business in the Prospectus State of New Jersey.
(and any amendment or supplement to either of themc) and The Manager is duly registered organized and qualified to conduct business validly existing and is in good standing as a limited liability company under the laws of the State of Delaware and in good standing as a foreign limited liability company under the laws of the State of New Jersey and in each other jurisdiction or place where in which the nature of its properties or conduct of its business requires such registration or qualification, except where qualification and the failure to so to register or to qualify would not have a material, adverse effect on materially adversely affect the condition (financial Companies' or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's ability to perform its obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principleshereunder.
(d) The Each Company and the Manager has have full limited liability company power and authority under applicable law to perform their respective obligations under an Operating Agreement, an Escrow Agreement relating to the financial resources available offering of the Units (each an "Escrow Agreement"), the Customer Agreement ("Customer Agreement") and the Advisory Agreement ("Advisory Agreement") relating to it necessary for the performance trading of its services commodity interests and obligations this Agreement, as contemplated described in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management AgreementMemorandum.
(e) The description Memorandum as of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions date of the 1933 Actissue, the 1940 Act, the Advisers Act, the Rules Initial Closing Time and Regulations and the Advisers Act Rules and Regulations and did not and at each Additional Closing Time will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they such statements were made) , not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Memorandum made in reliance upon and in conformity with information relating to the Trading Advisors and furnished or approved in writing by the Trading Advisors; it being acknowledged that each of the Trading Advisors have approved the information relating to such party or its principals, as set forth in the Memorandum.
(f) There are no legal or governmental proceedings pending or, to Since the knowledge respective dates as of the Manager, threatened against the Manager or to which any of its properties information is subject, that are required to be described given in the Registration Statement or the Prospectus (or Memorandum., there has not been any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations prospects of the Manager or that reasonably should be expected to have a materialthe Companies, adverse effect on whether or not arising in the ability ordinary course of the Manager to fulfill its obligations hereunder or under the Management Agreementbusiness.
(g) Since An Operating Agreement, an Escrow Agreement, a Customer Agreement, an Advisory Agreement and this Agreement have each been duly and validly authorized, executed and delivered by the date as Manager on behalf of which information is given each Company, and each constitutes a valid, binding and enforceable agreement of each Company, in accordance with its terms.
(h) The execution and delivery of the Operating Agreements, the Escrow Agreement, the Customer Agreement, the Advisory Agreement and this Agreement, the incurrence of the obligations set forth in each of such agreements and the consummation of the transactions contemplated therein and in the Registration Statement Memorandum will not constitute a breach of, or default under, any instrument by which either the Manager or a Company is bound or any order, rule or regulation applicable to the Manager or a Company of any court or any governmental body or administrative agency having jurisdiction over the Manager or a Company.
(i) There is not pending, or, to the best of the Manager's knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager or a Company is a party, or to which any of the assets of the Manager or a Company is subject, which is not referred to in the Memorandum and the Prospectus (and which might reasonably be expected to result in any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations or business prospects of the Manager, whether Manager or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsCompany.
(j) Neither The Manager has all federal and state governmental and regulatory approvals and licenses, and has effected all filings and registrations with federal and state governmental agencies required to conduct its business and to act as described in the executionMemorandum or required to perform its obligations as described under the Operating Agreements and this Agreement, delivery or and the performance of this Agreement such obligations will not contravene or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of any provision of its certificate of incorporation, by-laws or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indentureorder, lease law or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance binding upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectit.
(k) Except The Companies do not require any federal or state governmental or regulatory approvals or licenses, or need to effect any filings or registrations with any federal or state governmental agencies in order to conduct their business, to act as stated in this Agreement contemplated by the Memorandum and in to issue and sell Units (other than filings relating solely to the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation offering of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the ManagerUnits).
(l) In the event that the Fund or Deloitte & Touche LLP are, with respect to the Manager makes available any promotional materials intended for use only and the Companies, independent public accountants within the meaning of the 1933 Act and the regulations of the Securities and Exchange Commission ("SEC").
(m) The offer and sale of the Units in the manner contemplated by qualified broker-dealers and registered representatives thereof this Agreement will be exempt from the registration requirements of the 1933 Act by means reason of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofRegulation D promulgated thereunder.
Appears in 6 contracts
Sources: Selling Agreement (ML APM Global Commodity FuturesAccess LLC), Selling Agreement (ML Systematic Momentum FuturesAccess LLC), Selling Agreement (ML Cornerstone FuturesAccess LLC)
Representations and Warranties of the Manager. The Manager hereby represents and warrants to each Underwriter as followsthe Service Recipients that:
(a) The Manager 8.1.1 it is a corporation duly validly organized and validly existing in good standing under the laws of the State of Delaware;
8.1.2 it, with full corporate power or any another Service Provider, as applicable, holds, and authority shall hold, such Permits as are necessary to own, lease and operate perform its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act obligations hereunder and is not prohibited by aware of, or shall inform the Advisers ActService Recipients promptly upon knowledge of, any reason why such Permits might be cancelled;
8.1.3 it has the 1940 Actpower, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power capacity and authority to enter into this Agreement and to perform its obligations hereunder;
8.1.4 it has taken all necessary action to authorize the Management execution, delivery and performance of this Agreement, ;
8.1.5 the execution and delivery of, of this Agreement by it and the performance by the Manager it of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did do not and will not contain an untrue statement of a material fact contravene, breach or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any materialdefault under its Governing Instruments, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them)mortgage, except as otherwise stated thereinlease, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization agreement or other order of legally binding instrument, Permit or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument applicable Law to which the Manager it is a party or by which it or any of its properties or assets may be bound or materially violates or will materially violate any material statutebound, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of except for any such action taken contravention, breach or to be taken by any affiliates default which would not have a material adverse effect on the business, assets, financial condition or results of operations of the Manager;
8.1.6 no authorization, consent or approval, or filing with or notice to any Person is required in connection with the execution, delivery or performance by it of this Agreement; and
8.1.7 this Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 5 contracts
Sources: Master Services Agreement (Clearway Energy, Inc.), Master Services Agreement (Clearway Energy, Inc.), Management Services Agreement (NRG Yield, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as followsto, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager's accounting or other applicable records and is accurate in all material respects.
(b) The Manager is a corporation has been duly organized and validly is existing and in good standing under the laws of the State its state of Delawareorganization, with full corporate the limited liability company power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement Time of Sale Disclosure Package; and the Prospectus (and any amendment or supplement to either of them) and Manager is duly registered and qualified to conduct do business and is as a foreign corporation in good standing in each jurisdiction all other jurisdictions in which its ownership or place where lease of property or the nature of its properties or conduct of its business requires such registration or qualification, qualification except where the failure to be so to register or to qualify qualified would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Material Adverse Effect.
(c) The Manager has full power execution, delivery and authority to enter into performance of this Agreement and the Management Agreementtransactions contemplated thereby, including the execution issuance and delivery sale of the Securities will not result in a breach or violation of any of the terms or provisions of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and or constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to to, the terms organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which it the Manager or any of its subsidiaries is a party or by which it may be the Manager or any of its subsidiaries is bound or to which any of the property or assets properties of the Manager or any of its subsidiaries is subject.
(kd) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Time of Sale Disclosure Package (the "Management Agreement"), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as stated disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Prospectus Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(and in any amendment or supplement thereto), the j) The Manager has not taken and will not taketaken, directly or indirectly, any action that is designed to or which should that has constituted or that would reasonably be expected to cause or result in or which will constitute, the stabilization or manipulation of the price of any security of the Common Shares Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in violation the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of federal securities laws the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended ("Advisers Act"), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors' and officer's insurance in such amounts as is not aware customary for companies engaged in the type of any such action taken business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management's general or specific authorization and (B) access to be taken by any affiliates the Company's assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(lo) In The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the event failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company's investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Fund or Underwriters and, for purposes of the Manager makes available any promotional materials intended for use only by qualified broker-dealers opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and registered representatives thereof by means counsel to the Underwriters, will rely upon the accuracy and truthfulness of an Internet web site or similar electronic means, the Manager will install foregoing representations and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access hereby consents to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofreliance.
Appears in 5 contracts
Sources: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter the Selling Agent as follows:
(a) The Each Company has been formed pursuant to a Certificate of Formation (each a “Certificate of Formation”) and a Limited Liability Company Operating Agreement (each an “Operating Agreement”) which provide for the subscription for and sale of each Company’s units of limited liability company interest (“Units”) in classes; all action required to be taken by the Manager and each Company as a condition to the sale of the Units to subscribers who qualify as “Accredited Investors” within the meaning of the Securities Act of 1933, as amended (the “1933 Act”) has been, or prior to the Initial and each Additional Closing Time (as defined in Section 2 hereof) will have been taken, and, upon payment of the consideration therefor specified in all accepted FuturesAccess Program Subscription and Exchange Agreements and Signature Pages thereto (collectively, the “Subscription Agreements”), the Units will constitute valid limited liability company interests in a Company.
(b) Each Company is a corporation limited liability company duly organized pursuant to a Certificate of Formation and the DLLCA and validly existing in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business and operations, as described in its Memorandum; each Company has received (or will receive prior to the Registration Statement and Initial Closing Time) a certificate of authority to do business in the Prospectus State of New Jersey.
(and any amendment or supplement to either of themc) and The Manager is duly registered organized and qualified to conduct business validly existing and is in good standing as a limited liability company under the laws of the State of Delaware and in good standing as a foreign limited liability company under the laws of the State of New Jersey and in each other jurisdiction or place where in which the nature of its properties or conduct of its business requires such registration or qualification, except where qualification and the failure to so to register or to qualify would not have a material, adverse effect on materially adversely affect the condition (financial Companies’ or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority ’s ability to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principleshereunder.
(d) The Each Company and the Manager has have full limited liability company power and authority under applicable law to perform their respective obligations under an Operating Agreement, an Escrow Agreement relating to the financial resources available offering of the Units (each an “Escrow Agreement”), the Customer Agreement (“Customer Agreement”) and the Advisory Agreement (“Advisory Agreement”) relating to it necessary for the performance trading of its services commodity interests and obligations this Agreement, as contemplated described in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management AgreementMemorandum.
(e) The description Memorandum as of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions date of the 1933 Actissue, the 1940 Act, the Advisers Act, the Rules Initial Closing Time and Regulations and the Advisers Act Rules and Regulations and did not and at each Additional Closing Time will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they such statements were made) , not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Memorandum made in reliance upon and in conformity with information relating to the Trading Advisors and furnished or approved in writing by the Trading Advisors; it being acknowledged that each of the Trading Advisors have approved the information relating to such party or its principals, as set forth in the Memorandum.
(f) There are no legal or governmental proceedings pending or, to Since the knowledge respective dates as of the Manager, threatened against the Manager or to which any of its properties information is subject, that are required to be described given in the Registration Statement or the Prospectus (or Memorandum., there has not been any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations prospects of the Manager or that reasonably should be expected to have a materialthe Companies, adverse effect on whether or not arising in the ability ordinary course of the Manager to fulfill its obligations hereunder or under the Management Agreementbusiness.
(g) Since An Operating Agreement, an Escrow Agreement, a Customer Agreement, an Advisory Agreement and this Agreement have each been duly and validly authorized, executed and delivered by the date as Manager on behalf of which information is given each Company, and each constitutes a valid, binding and enforceable agreement of each Company, in accordance with its terms.
(h) The execution and delivery of the Operating Agreements, the Escrow Agreement, the Customer Agreement, the Advisory Agreement and this Agreement, the incurrence of the obligations set forth in each of such agreements and the consummation of the transactions contemplated therein and in the Registration Statement Memorandum will not constitute a breach of, or default under, any instrument by which either the Manager or a Company is bound or any order, rule or regulation applicable to the Manager or a Company of any court or any governmental body or administrative agency having jurisdiction over the Manager or a Company.
(i) There is not pending, or, to the best of the Manager’s knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager or a Company is a party, or to which any of the assets of the Manager or a Company is subject, which is not referred to in the Memorandum and the Prospectus (and which might reasonably be expected to result in any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations or business prospects of the Manager, whether Manager or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsCompany.
(j) Neither The Manager has all federal and state governmental and regulatory approvals and licenses, and has effected all filings and registrations with federal and state governmental agencies required to conduct its business and to act as described in the executionMemorandum or required to perform its obligations as described under the Operating Agreements and this Agreement, delivery or and the performance of this Agreement such obligations will not contravene or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of any provision of its certificate of incorporation, by-laws or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indentureorder, lease law or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance binding upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectit.
(k) Except The Companies do not require any federal or state governmental or regulatory approvals or licenses, or need to effect any filings or registrations with any federal or state governmental agencies in order to conduct their business, to act as stated in this Agreement contemplated by the Memorandum and in to issue and sell Units (other than filings relating solely to the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation offering of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the ManagerUnits).
(l) In the event that the Fund or Deloitte & Touche LLP are, with respect to the Manager makes available any promotional materials intended for use only and the Companies, independent public accountants within the meaning of the 1933 Act and the regulations of the Securities and Exchange Commission (“SEC”).
(m) The offer and sale of the Units in the manner contemplated by qualified broker-dealers and registered representatives thereof this Agreement will be exempt from the registration requirements of the 1933 Act by means reason of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofRegulation D promulgated thereunder.
Appears in 5 contracts
Sources: Selling Agreement (Man AHL FuturesAccess LLC), Selling Agreement (ML Systematic Momentum FuturesAccess LLC), Selling Agreement (ML BlueTrend FuturesAccess LLC)
Representations and Warranties of the Manager. The Manager represents and warrants to the Underwriters as of the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each Underwriter as followsadditional time of purchase that:
(a) The Manager has been duly formed and is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign limited liability company in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a material, material adverse effect on the condition (financial or other)business, businessassets, properties, net assets prospects, financial condition or results of operations operation of the ManagerManager and its subsidiaries taken as a whole (a “Manager Material Adverse Effect”), and has full limited liability company power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into and perform its obligations under the Management Agreement, and the Manager is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(b) The Manager is This Agreement has been duly registered as an investment adviser under the Advisers Act and is not prohibited validly authorized and validly executed and delivered by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Manager.
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have has been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principlesprinciples and except to the extent that any indemnification provision thereof may be limited by public policy considerations in respect thereof.
(d) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery formation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager operating agreement or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Manager Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of formation or operating agreement of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Manager Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms Manager, (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained, or as may be required under the Securities Act or state securities laws or the rules of FINRA.
(f) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Manager Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Manager Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Manager Material Adverse Effect.
(g) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the is subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Manager is subjectMaterial Adverse Effect.
(kh) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing its obligations under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofManagement Agreement as described in the Prospectus.
Appears in 4 contracts
Sources: Underwriting Agreement (Annaly Capital Management Inc), Underwriting Agreement (Annaly Capital Management Inc), Underwriting Agreement (Annaly Capital Management Inc)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as of each Representation Date as follows:
(ai) The information concerning the Manager and its affiliates (other than the Company and its subsidiaries) included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus is true and correct in all material respects.
(ii) The Manager is a corporation has been duly organized and is validly existing as a limited liability company and is in good standing under the laws of Delaware. The Manager is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which the State character or location of Delawareits properties (owned, with full corporate leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate have a Material Adverse Effect. The Manager has all requisite power and authority authority, and all necessary Governmental Licenses, to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and it 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 qualificationnow being conducted, except where the failure so to register or to qualify would possess such Governmental Licenses will not in the aggregate have a materialMaterial Adverse Effect, adverse effect on and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed or incorporated by reference in the condition (financial or other)Registration Statement, business, properties, net assets or results of operations of the ManagerGeneral Disclosure Package and the Prospectus.
(biii) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this This Agreement and the Management Agreement have each been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the Manager. The Management Agreement constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(div) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did is not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no materialin violation of its charter or limited liability company agreement, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licensesdefault under, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowswhich, or after with notice or lapse of time or both, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any constitute such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon upon, any property or assets of the Manager or any of its subsidiaries pursuant to the terms to, any indenture, mortgage, deed of any trust, loan agreement or other agreement or instrument to which it is a party or by which it may be is bound or to which any of the its property or assets is subject or in violation in any respect of any statute or any judgment, decree, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Manager or any of its subsidiaries or any of their properties or assets, except in the case of (B) above, any default or event that would not have a Material Adverse Effect.
(v) Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no legal or governmental proceeding to which the Manager or any of its subsidiaries is a party, or of which any property of the Manager or any of its subsidiaries is subjectthe subject that, singly or in the aggregate, if determined adversely to the Manager or any of its subsidiaries, is reasonably likely to have a Material Adverse Effect, and to the best of the Manager’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others.
(kvi) Except as stated in this Agreement and No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder which have not been made or the failure of which to have been made in the Prospectus aggregate would not have a Material Adverse Effect.
(and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the vii) The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from acting under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install General Disclosure Package and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Prospectus.
Appears in 4 contracts
Sources: Underwriting Agreement (New Residential Investment Corp.), Underwriting Agreement (New Residential Investment Corp.), Underwriting Agreement (New Residential Investment Corp.)
Representations and Warranties of the Manager. The Manager hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as followsthe case may be, that:
(a) The information provided by the Manager, set forth under the headings “Our Manager and the Management Agreement,” and “Certain Relationships and Related Transactions” in the Registration Statement, the Time of Sale Information and the Prospectus (collectively, the “Manager Disclosures”) is a corporation true and correct in all material respects.
(b) The Manager has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate Florida and has limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement to either of them) enter into and perform its obligations under this Agreement and the Management Agreement; and the Manager is duly registered and qualified as a foreign limited liability company to conduct transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or place where leasing of property or the nature of its properties or conduct of its business requires such registration or qualificationbusiness, except where the failure so to register qualify or to qualify be in good standing would not have not, individually or in the aggregate, reasonably be expected to result in a materialMaterial Adverse Effect.
(c) This Agreement has been duly authorized, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of executed and delivered by the Manager.
(bd) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples and the discretion of the court before which any proceeding may be brought.
(de) The Manager has the financial resources available to it necessary for is not (i) in violation of its organizational documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreements to which it is bound, or which any of its services property or assets is subject, except, in the case of (ii) above, for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and obligations as the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description Time of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement Sale Information and the Prospectus (and any amendment or supplement thereto) complied compliance by the Manager with its obligations hereunder have been duly authorized by all necessary limited liability company action and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Managernot, whether with or not arising from without the ordinary course giving of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse passage of time would allowor both, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of of, or a default or Debt Repayment Triggering Event under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the its property or assets is subject (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the limited liability company agreement or other organizational documents of the Manager or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Manager or any of its assets, properties or operations.
(f) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, (i) there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting the Manager that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Manager of its obligations hereunder; and (ii) the aggregate of all pending legal or governmental proceedings to which the Manager is a party or of which any of its property or assets is the subject, including ordinary routine litigation incidental to the business, would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder, in connection with the offering or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act or state securities laws or as are described in the Registration Statement, the Time of Sale Information or the Prospectus.
(h) The Manager has not been notified that any executive officer of the Company or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Company, any executive officer or key employee of the Company or the Manager, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the Time of Sale Information and the Prospectus, unless a waiver in writing has been obtained.
(i) The Manager operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated by it on behalf of the Company or the Operating Company pursuant to its duties set forth in the Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s or the Operating Company’s assets is permitted only in accordance with management’s general or specific authorization.
(j) The duties of the Manager set forth in the Management Agreement and disclosed in the Registration Statement, the Time of Sale Information and the Prospectus are not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Manager has not taken taken, and will not take, directly or indirectly, any action that constituted, or any action designed to to, or which should that might reasonably be expected to cause or result in or which will constitute, under the Securities Act or otherwise, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates security of the Manager.
(l) In the event that the Fund Company or the Manager makes available Operating Company to facilitate the sale or resale of the Stock or for any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofpurpose.
Appears in 4 contracts
Sources: Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to to, and agrees with, each Underwriter as follows:
(a) The Manager has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of the State jurisdiction of Delawareits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would does not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerManager Material Adverse Effect.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and the Manager is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for or the Fund Fee Agreements as contemplated by the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus. The Manager 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 and the Advisers Act Rules and Regulations by the Manager and its supervised persons.
(c) The Manager has full limited liability company power and authority to enter into this Agreement and Agreement, the Management Agreement, the Subadvisory Agreement and the Fee Agreements; the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement, the Management Agreement, the Subadvisory Agreement and the Management Agreement Fee Agreements have been duly and validly authorized by the Manager Manager; and this Agreement, the Management Agreement, the Subadvisory Agreement and the Management Agreement Fee Agreements, have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement, the Subadvisory Agreement and the Management AgreementFee Agreements, as applicable.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving the Manager or its property is pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) would reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, material adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement, the Subadvisory Agreement or the Fee Agreements or (iii) would reasonably be expected to have a Manager Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Manager that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or otherotherwise), businessbusiness prospects, propertiesearnings, net assets business or results of operations or business prospects properties of the Manager, whether or not arising from transactions in the ordinary course of business and (Bii) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) The Manager has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in or contemplated in the ProspectusRegistration Statement, each Preliminary Prospectus and the Prospectus except to the extent that the failure to do so would not have a Manager Material Adverse Effect; the Manager has fulfilled and performed all its material obligations with respect not received any notice of proceedings relating to such permits and no event has occurred which allows, or after notice or lapse of time would allow, the revocation or termination thereof or results in any other material impairment modification of the rights of the Manager under any such permitlicense, certificate, permit or authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Manager Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(i) This Agreement, the Management Agreement and the Management Subadvisory Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Subadvisory Agreement or the Fee Agreements except such as have been made or obtained under the Act, the Exchange Act, the Advisers Act, the 1940 Act, the rules and regulations of FINRA and the Exchange, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement, the Management Agreement, the Subadvisory Agreement or the Management Agreement by Fee Agreements nor the Managerconsummation of the transactions herein or therein contemplated, nor the consummation by the Manager fulfillment of the transactions contemplated hereby terms hereof or thereby (A) requires any consentthereof, approvalconflict with, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default underviolation of, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to to, (i) the Organizational Documents of the Manager, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it the Manager is a party or by which it may be bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Manager of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Manager or any of its properties, except in the property case of (ii) and (iii) above, where such a conflict, breach, violation or assets of the imposition would not have a Manager is subjectMaterial Adverse Effect.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Manager has not taken and will not taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in or which will constituteviolation of federal securities laws, in stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager, other than (i) such actions as taken by the Underwriters and (ii) tender offers, share repurchases and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan effected following the date on which the distribution of the Underwritten Securities is completed, in each case, so long as such actions are in compliance with all applicable law.
(lm) In the event that the Fund Fund, the Manager or the Manager Subadviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof.
(n) The operations of the Manager and its subsidiaries are and have been conducted at all times in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Manager, threatened.
(o) The Manager maintains a system of internal controls designed to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement and the Subadvisory Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) Neither the Manager nor, to the knowledge of the Manager, any director, officer, agent, employee or affiliate of the Manager is aware of or has taken any action in connection with the Manager, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Manager, and to the knowledge of the Manager, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(q) Neither the Manager nor, to the knowledge of the Manager, any director, officer, agent, employee or affiliate of the Manager is currently subject to any U.S. sanctions administered by OFAC; and the Manager will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Any certificate signed by any officer of the Manager and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Manager, as to matters covered therein, to each Underwriter.
Appears in 3 contracts
Sources: Underwriting Agreement (ClearBridge Energy MLP Total Return Fund Inc.), Underwriting Agreement (ClearBridge Energy MLP Opportunity Fund Inc.), Underwriting Agreement (ClearBridge Energy MLP Fund Inc.)
Representations and Warranties of the Manager. The Manager FIG LLC, a limited liability company organized and existing under the laws of Delaware and the manager of the Company (the “Manager”) represents and warrants to each Underwriter of the Underwriters as of each Representation Date as follows:
i. The information concerning the Manager and its affiliates (aother than the Company and its subsidiaries) included in the Registration Statement, the General Disclosure Package and the Final Prospectus is true and correct in all material respects.
ii. The Manager is a corporation has been duly organized and is validly existing as a limited liability company and is in good standing under the laws of Delaware. The Manager is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which the State character or location of Delawareits properties (owned, with full corporate leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not, singly or in the aggregate, have a Material Adverse Effect. The Manager has all requisite power and authority authority, and all necessary Governmental Licenses, to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and it 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 qualificationnow being conducted, except where the failure so to register possess such Governmental Licenses will not, singly or to qualify would not in the aggregate, have a materialMaterial Adverse Effect, adverse effect on and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed in the condition (financial or other)Registration Statement, business, properties, net assets or results of operations of the ManagerGeneral Disclosure Package and the Final Prospectus.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this iii. This Agreement and the Management Agreement have each been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the Manager. The Management Agreement constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(d) iv. The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did is not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial violation of its charter or other), business, properties, net assets limited liability company agreement or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licensesdefault under, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowswhich, or after with notice or lapse of time or both, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any constitute such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon upon, any property or assets of the Manager or any of its subsidiaries pursuant to the terms to, any indenture, mortgage, deed of any trust, loan agreement or other agreement or instrument to which it is a party or by which it may be is bound or to which any of the its property or assets is subject or in violation in any respect of any statute or any judgment, decree, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Manager or any of its subsidiaries or any of their properties or assets, except in the case of (B) above any default or event that would not, singly or in the aggregate, have a Material Adverse Effect.
v. Except as described in the Registration Statement, the General Disclosure Package and the Final Prospectus, there is no legal or governmental proceeding to which the Manager or any of its subsidiaries is a party, or of which any property of the Manager or any of its subsidiaries is subjectthe subject that could, singly or in the aggregate, if determined adversely to the Manager or any of its subsidiaries, be reasonably expected to have a Material Adverse Effect, and to the best of the Manager’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others.
(k) Except as stated in this Agreement and vi. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder which have not been made or the failure of which to have been made, singly or in the Prospectus (and in any amendment or supplement thereto)aggregate, the Manager has would not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the have a Material Adverse Effect.
vii. The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from acting under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install General Disclosure Package and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Final Prospectus.
Appears in 3 contracts
Sources: Underwriting Agreement (New Media Investment Group Inc.), Underwriting Agreement (New Media Investment Group Inc.), Underwriting Agreement (New Media Investment Group Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as followsto, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respects.
(b) The Manager is a corporation has been duly organized and validly is existing and in good standing under the laws of the State its state of Delawareorganization, with full corporate the limited liability company power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement Time of Sale Disclosure Package; and the Prospectus (and any amendment or supplement to either of them) and Manager is duly registered and qualified to conduct do business and is as a foreign corporation in good standing in each jurisdiction all other jurisdictions in which its ownership or place where lease of property or the nature of its properties or conduct of its business requires such registration or qualification, qualification except where the failure to be so to register or to qualify qualified would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Material Adverse Effect.
(c) The Manager has full power execution, delivery and authority to enter into performance of this Agreement and the Management Agreementtransactions contemplated thereby, including the execution issuance and delivery sale of the Securities will not result in a breach or violation of any of the terms or provisions of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and or constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to to, the terms organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which it the Manager or any of its subsidiaries is a party or by which it may be the Manager or any of its subsidiaries is bound or to which any of the property or assets properties of the Manager or any of its subsidiaries is subject.
(kd) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Time of Sale Disclosure Package (the “Management Agreement”), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as stated disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Prospectus Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(and in any amendment or supplement thereto), the j) The Manager has not taken and will not taketaken, directly or indirectly, any action that is designed to or which should that has constituted or that would reasonably be expected to cause or result in or which will constitute, the stabilization or manipulation of the price of any security of the Common Shares Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in violation the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of federal securities laws the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is not aware customary for companies engaged in the type of any such action taken business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to be taken by any affiliates the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(lo) In The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the event failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Fund or Underwriters and, for purposes of the Manager makes available any promotional materials intended for use only by qualified broker-dealers opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and registered representatives thereof by means counsel to the Underwriters, will rely upon the accuracy and truthfulness of an Internet web site or similar electronic means, the Manager will install foregoing representations and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access hereby consents to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofreliance.
Appears in 3 contracts
Sources: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter and the Issuer Trustee as followsof the date of this Agreement and as of the Closing Date, that:
(a) The Manager is a corporation duly organized and validly existing in good standing the Registration Statement has been declared effective by the SEC under the laws Securities Act; the conditions to the use by the Manager of a Registration Statement on Form S-3 under the Securities Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Registration Statement and the Prospectus; no stop order suspending the effectiveness of the State Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of Delawarethe Manager, threatened by the SEC; and (i) on the Effective Date of the Registration Statement, the Registration Statement conformed in all material respects to the requirements of the Securities Act, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein, or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) at the time of filing of the Prospectus pursuant to Rule 424(b) and on the Closing Date the Prospectus and the Registration Statement will conform in all material respects to the requirements of the Securities Act, and such document will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing representations and warranties shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii) statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with full corporate power and authority information relating to own, lease and operate its properties and any Underwriter furnished to conduct its business as described any CBA Party in writing by such Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (and any amendment Prospectus, at the time they were or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where hereafter are filed with the nature of its properties or conduct of its business requires such registration or qualificationSEC, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and will comply in all material respects with the provisions requirements of the 1933 ActExchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder (collectively, the 1940 Act"EXCHANGE ACT") and, when read together with the Advisers Actother information in the Prospectus, at the Rules time the Registration Statement became effective, at the date of the Prospectus and Regulations and at the Advisers Act Rules and Regulations and Closing Date, did not and will not contain include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (therein, in the case of a prospectus, in light of the circumstances under which they were made, not misleading; provided, however, no representation or warranty is made as to documents deemed to be incorporated by reference in the Registration Statement as the result of filing any Current Report on Form 8-K at the request of the Underwriters except to the extent such documents accurately reflect or are accurately based upon information furnished by or on behalf of the CBA Parties to the Underwriters for the purpose of preparing such documents;
(c) each Issuer Free Writing Prospectus (as of its date) did not, and the Approved Offering Materials as of the date of the Approved Offering Materials did not and as of the date of the first Contract of Sale will not and as at the Closing Date will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fd) There are no legal The Manager was not, as of any date on or governmental proceedings pending orafter which a bona fide offer (as used in Rule 164(h)(2) of the Securities Act Regulations) of the Offered Notes was made an Ineligible Issuer, as such term is defined in Rule 405 of the Securities Act Regulations.
(e) to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, no event has occurred that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of would entitle the Manager to fulfill its obligations hereunder or direct the Issuer Trustee to retire as trustee of the Trust under clause 19.2 of the Management Agreement.Master Trust Deed; and
(gf) Since the date Trust is not and (i) upon the issuance and sale of the Notes as of which information is given contemplated in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated thereinthis Agreement, (Aii) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects application of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business net proceeds therefrom as described in the Prospectus.
, (hiii) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Managerparties to the Basic Documents of their respective obligations under the Basic Documents, nor and (iv) the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with by the CommissionBasic Documents, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with Trust will not be required to be registered as an "investment company" within the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements meaning of the NASD Division Investment Company Act of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under1940, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectas amended.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (Securitisation Advisory Services Pty LTD), Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Representations and Warranties of the Manager. (a) The Manager represents and warrants that it has adopted and implemented written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, that are reasonably designed to each Underwriter as follows:
prevent violations of the Advisers Act and the rules thereunder by the Manager and its supervised persons (a) the “Advisers Act Compliance Procedures”). The Manager is a corporation duly organized represents and validly existing warrants that it has provided the Trust with summaries of the Advisers Act Compliance Procedures and agrees to permit the Funds’ Chief Compliance Officer to conduct reviews and oversight of such policies and procedures in good standing accordance with Rule 38a-1 under the laws 1940 Act. The Manager shall notify the Trust’s Chief Compliance Officer and the Trust of any material changes to the Advisers Act Compliance Procedures or any other policies or procedures as they otherwise pertain to activities performed for or on behalf of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerTrust.
(b) The Manager is duly registered as an investment adviser represents and warrants that it has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and Rule 204A-1 of the Advisers Act and has provided the Trust with a copy of the code of ethics and evidence of its adoption, and will notify the Trust’s Chief Compliance Officer and the Trust of any material changes to its code of ethics. The Manager or the Manager’s Chief Compliance Officer shall, as required by Rule 17j-1, certify to the Trust that the Manager has complied with the requirements of Rule 17j-1 during the relevant period and that there has been no material violation of the Manager’s code of ethics that is not prohibited by pertinent to the Advisers ActTrust or, if such a violation has occurred, that appropriate action was taken in response to such violation and Manager has provided a written report to the Trust regarding the violation. Upon the written request of the Trust or the Funds’ Chief Compliance Officer, the 1940 Act, Manager shall permit the Advisers Act Rules Trust and Regulations its employees or agents to examine the 1940 Act Rules and Regulations from acting under reports required to be made to the Management Agreement for the Fund as contemplated Manager by the Registration Statement and the Prospectus (or any amendment or supplement theretoRule 17j-1(d)(1).
(c) The Manager has full power shall use commercially reasonable efforts to maintain business continuity, disaster recovery and authority backup capabilities and facilities necessary to enter into this Agreement and perform its obligations hereunder as soon as practicable following a disruption or delay. On a timely basis as the Management AgreementTrust may reasonably request, the execution Manager shall provide access to its written business continuity, disaster recovery and delivery ofbackup plan(s) or sufficient information and written certification regarding such plans or similar protocol with respect to the Funds to satisfy the Trust’s reasonable inquiries and to assist the Trust in complying with Rule 38a-1 under the 1940 Act. The Manager shall notify the Trust, and as soon as practicable by telephone, electronic mail or such other method of prompt communication as may be available under the performance by circumstances, of the occurrence of any event requiring the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principlesimplement any procedures under any such plans.
(d) The Manager has reviewed the financial resources available most recent Registration Statement or amendment that contains disclosure about the Manager, and represents and warrants that, with respect to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of disclosure about the Manager and its businessor information relating, and the statements attributable directly or indirectly, to the Manager, in and the principal investment strategies, principal risks, and investment limitations of the Funds, the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions contains, as of the 1933 Actdate hereof, the 1940 Act, the Advisers Act, the Rules no untrue statement of any material fact and Regulations and the Advisers Act Rules and Regulations and did does not and will not contain an untrue omit any statement of a material fact or omit to state a material fact fact, which was required to be stated therein or necessary to make the statements therein (in the case of a prospectuscontained therein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal or governmental proceedings pending or, . With respect to the knowledge of the Manager, threatened against disclosure about the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not takerelating, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitutethe Manager, stabilization or manipulation the risks of the price Funds, and/or the investment strategies or theories of the Common Shares in violation of federal securities laws and Funds, the Manager is represents and warrants that it: (i) has not aware and will not disclose to the Trust any untrue statement of a material fact or omit any such action taken or statement of a material fact, which was required to be taken by any affiliates stated in such disclosure to make the statements contained therein, in light of the Manager.
circumstances under which they were made, not misleading; and (lii) In will promptly provide notice to the Trust in the event that the Fund Registration Statement or amendment contains any untrue statement of any material fact or omits any statement of a material fact, which was required to be stated therein or necessary to make the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means statements contained therein, in light of an Internet web site or similar electronic meansthe circumstances under which they were made, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofnot misleading.
Appears in 2 contracts
Sources: Investment Management Agreement (Guardian Variable Products Trust), Investment Management Agreement (Guardian Variable Products Trust)
Representations and Warranties of the Manager. The Manager represents -------------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (Nuveen North Carolina Dividend Advantage Municipal Fund), Underwriting Agreement (Nuveen Ohio Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager has been duly formed, is a corporation duly organized and validly existing in good standing as a business trust under the laws of the State Commonwealth of DelawareMassachusetts, with full corporate power and authority to ownconduct all the activities conducted by it, to own or lease and operate its properties all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Prospectus (and any amendment or supplement to either of them) and Manager is duly registered licensed and qualified to conduct do business and is in good standing in each jurisdiction in which its ownership or place where the nature leasing of property or its properties or conduct conducting of its business requires such registration or licensing and qualification, except where the failure to be so to register or to qualify licensed and qualified would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Investment Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, or any facts or circumstances of which could lead to any proceeding which might adversely affect the registration of the Manager with the Commission.
(c) The Manager has full power and authority to enter into this Agreement and the Investment Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Investment Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Investment Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Investment Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectusthe Prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Investment Management Agreement.
(g) Since Except as disclosed in the date Registration Statement and the Prospectus (or any amendment or supplement to either of them), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (and or any amendment or supplement to either of them), except as otherwise stated thereinthe Manager has not incurred any liability or obligation, (A) direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Manager or the Fund and that is required to be disclosed in the Registration Statement or the Prospectus and there has not been no materialany material adverse change, or any development involving or which may reasonably be expected to involve, a prospective material adverse change change, in the condition (financial or other), business, business prospects, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of the Manager to perform its business as described in obligations under this Agreement and the ProspectusCustodian Agreements.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") Permits as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permitPermit.
(i) This Agreement and the Investment Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Investment Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject. The Manager is not in violation of any order of any court or any arbitrator, governmental authority or administrative agency.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which might should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of any securities issued by the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Shares, and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials regarding the Fund intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (Eaton Vance Insured New York Municipal Bond Fund), Underwriting Agreement (Eaton Vance Insured California Municipal Bond Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter the Placement Agent as follows:
(a) The the Manager is a corporation duly organized and limited partnership, validly existing and in good standing under the laws of the State state of Delawareits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described engage in the Registration Statement activities contemplated by and reflected in the Prospectus (and any amendment or supplement to either of them) Memorandum, and is duly registered and qualified to conduct do business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business requires such registration or qualification, except qualification and where the failure to be so to register or to qualify would not have a material, adverse qualified could materially adversely effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.’s ability to perform its obligations hereunder;
(b) The Manager is duly registered as an investment adviser under the Advisers Act when executed and is not prohibited delivered by the Advisers ActManager, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations underduly appointed attorney-in-fact, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been will be duly executed and delivered by or on behalf of the Manager and will constitute the legal, valid and legally binding agreements obligation of the Manager, enforceable against the Manager in accordance with their its terms, ;
c) except as rights to indemnity and contribution hereunder may be limited by federal provided in the Memorandum, no consent or state securities laws and subject to the qualification that the enforceability authorization of, or notice to, or registration or filing with, any governmental authority of the United States is required in connection with the execution, delivery, performance, validity or enforcement of this Agreement by the Manager's obligations hereunder , nor in connection with the consummation by the Manager of the transactions as contemplated by and thereunder may be limited by bankruptcyreflected in the Memorandum, insolvencyincluding the offer, reorganization, moratorium sale and other laws relating to or affecting creditors' rights generally and by general equitable principles.delivery of the Units as contemplated therein;
(d) The Manager has the financial resources available all references to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, principals as set forth in the Memorandum are accurate and the statements attributable complete in all material respects. As to the Manager, in the Registration Statement each of its principals and the Prospectus (performance information of pools operated or advised by the Manager, the Memorandum and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Actrelated sales materials do not contain, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an as of any closing date contain, any 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 (contained therein, in the case of a prospectus, in light of the circumstances under which they such statements were made) , not misleading.;
e) the Manager has all federal and state governmental, regulatory and exchange approvals and licenses, and has effected all filings and registrations with federal and state governmental and regulatory agencies, required to conduct its business and to act as described in the Memorandum or required to perform its obligations as described under this Agreement (f) There are no legal including, without limitation, registration of the Manager as a commodity pool operator and a commodity trading advisor with the NFA), and the performance of such obligations will not contravene or governmental proceedings pending or, to result in a breach of any provision of the knowledge constituent documents of the Manager, threatened against ;
f) since the Manager or to respective dates as of which any of its properties information is subject, that are required to be described provided in the Registration Statement Memorandum, except as may otherwise be stated in or contemplated by the Prospectus (or Memorandum, there has not been any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of business;
g) other than as disclosed in the Memorandum, there has not been in the five years preceding the date of the Memorandum and there is not pending or, to the best of the Manager’s knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager is a party, or to which any of the assets of the Manager is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Manager. The Manager has not received any notice of an investigation by the NFA or the CFTC regarding non-compliance by the Manager with the CEAct or the regulations thereunder;
h) the Manager is and shall remain in compliance with all laws, rules, regulations and orders of any court, governmental body or administrative agency applicable to its business as described in the Prospectus.
(h) The Manager has such licensesMemorandum, permits and authorizations the execution and delivery of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in this Agreement, the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment incurrence of the rights of the Manager under any such permit.
(i) This Agreement obligations herein and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with herein and in the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or Memorandum will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will not constitute a breach of of, or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreementsuch law, indenturerule, lease regulation or other order, or any instrument to by which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable bound;
i) the composite performance information relating to the Manager and the Funds as set forth in the Memorandum or any of its properties or will result related sales materials has been calculated in the creation or imposition of any material lien, charge or encumbrance upon any property or assets conformity with all applicable rules and advisories of the Manager pursuant to CFTC; and
j) the terms foregoing representations and warranties shall be continuing during the term of this Agreement and, if at any agreement or instrument to time any event shall occur which it is a party or by which it may be bound or to which would make any of the property forgoing incomplete or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto)inaccurate, the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation and/or either Fund shall promptly notify the Placement Agent of the price occurrence of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Managerevent.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Sources: Placement Agreement (Graham Alternative Investment Fund I LLC), Placement Agreement (Graham Alternative Investment Fund Ii LLC)
Representations and Warranties of the Manager. The Manager hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as followsthe case may be, that:
(a) The information regarding the Manager, set forth under the headings “Management,” “Management Compensation,” and “Conflicts of Interest” in the Registration Statement, the Time of Sale Information and the Prospectus (collectively, the “Manager Disclosures”) is a corporation true and correct in all material respects.
(b) The Manager has been duly organized formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full corporate Delaware and has the limited partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement to either of them) enter into and perform its obligations under this Agreement and the Amended Management Agreement; and the Manager is duly registered and qualified as a foreign limited partnership to conduct transact business and is in good standing in each other jurisdiction or place where the nature of its properties or conduct of its business requires in which such registration or qualificationqualification is required, except where the failure to so to register qualify or to qualify be in good standing would not have not, individually or in the aggregate, reasonably be expected to result in a materialMaterial Adverse Effect.
(c) This Agreement has been duly authorized, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of executed and delivered by the Manager.
(bd) (i) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, and (ii) the Amended Management Agreement has been duly authorized, and at the time it is executed and delivered by the Manager, will constitute a valid and binding agreement of the Manager in accordance with its terms, in each case, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples and the discretion of the court before which any proceeding may be brought.
(de) The limited partnership interests of the Manager are owned by NexPoint Advisors, L.P., free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(f) The Manager is not (i) in violation of its organizational documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreements to which it is bound, or which any of its property or assets is subject, except, in the case of (ii) above, for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Amended Management Agreement, as applicable, and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information and the Prospectus and compliance by the Manager with its obligations hereunder and thereunder have been duly authorized by all necessary limited partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Debt Repayment Triggering Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Manager pursuant to any agreement to which it is bound or to which any of its property or assets is subject (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the limited partnership agreement or other organizational documents of the Manager or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Manager or any of its assets, properties or operations.
(g) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, (i) there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting the Manager that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement and the Amended Management Agreement, as applicable, or the performance by the Manager of its obligations hereunder or thereunder; and (ii) the aggregate of all pending legal or governmental proceedings to which the Manager is a party or of which any of its property or assets is the subject, including ordinary routine litigation incidental to the business, would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(h) Neither the Manager nor any partner, officer, or employee of the Manager nor, to the knowledge of the Manager, any agent, affiliate or other person associated with or acting on behalf of the Manager has taken any action directly or indirectly that would result in a violation of the Anti-Corruption Laws. The Manager has instituted, maintains and enforces, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with the Anti-Corruption Laws.
(i) The operations of the Manager are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws.
(j) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder, in connection with the offering or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act or state securities laws or as are described in the Registration Statement, the Time of Sale Information or the Prospectus.
(k) The Manager has not been notified that any executive officer of the Company or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Company, any executive officer or key employee of the Company or the Manager, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the Time of Sale Information and the Prospectus, unless a waiver in writing has been obtained.
(l) The Manager intends to operate a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated by it on behalf of the Company or the Operating Partnership pursuant to its duties set forth in the Amended Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s or the Operating Partnership’s assets is permitted only in accordance with management’s general or specific authorization.
(m) The Manager has, with respect to the Management Agreement, and upon the execution of the Amended Management Agreement by the Company and the Manager, the Manager will have, the financial and other resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(en) The description duties of the Manager set forth in the Amended Management Agreement and its business, and the statements attributable to the Manager, disclosed in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with are not prohibited by the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Investment Advisers Act Rules of 1940, as amended, or the rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleadingregulations thereunder.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(ho) The Manager has such licensesnot taken, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action that constituted, or any action designed to to, or which should that might reasonably be expected to cause or result in or which will constitute, under the Securities Act or otherwise, stabilization or manipulation of the price of any security of the Common Company or the Operating Partnership to facilitate the sale or resale of the Shares in violation or for any other purpose. Any certificate signed by any officer or any authorized representative of federal securities laws and the Manager is not aware of any such action taken and delivered to the Underwriters or to counsel for the Underwriters shall be taken deemed a representation and warranty by any affiliates the Manager to the Underwriters as to the matters covered thereby as of the Managerdate or dates indicated on such certificate.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the time of purchase and each additional time of purchase, if any, and agrees with each Underwriter, as follows:
(a) The information (including the information set forth under the heading “Our Manager and our Management Agreement—Prior Performance of Certain Real Estate Companies Managed by RMR LLC”) regarding the Manager and its affiliates (other than the Company and its subsidiaries) in the Registration Statement, the Disclosure Package and the Prospectus is a corporation true and correct in all material respects.
(b) The Manager has been duly organized and is validly existing as a limited liability company in good standing under with the laws of the State of Delaware, with full corporate SDAT and has limited liability company power and authority to own, lease and operate its the properties owned by the Manager on the date hereof and to conduct its business as described in the Registration Statement Statement, the Disclosure Package and the Prospectus (and any amendment or supplement to either of them) enter into and perform its obligations under this Agreement, the Private Placement Purchase Agreement and the Management Agreement; the Manager is duly registered and qualified as a foreign limited liability company to conduct transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or place where leasing of property or the nature of its properties or conduct of its business requires such registration or qualificationbusiness, except where the failure so to register qualify or to qualify be in good standing would not have result in, singly or in the aggregate, a material, material adverse effect on in the condition (condition, financial or other)otherwise, business, properties, net assets or in the results of operations operations, business affairs or business prospects of the Manager.
Manager and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (b) The a “Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement theretoMaterial Adverse Effect”).
(c) The Manager This Agreement has full power been duly authorized, executed and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance delivered by the Manager of its obligations under, this Manager.
(d) The Private Placement Purchase Agreement and the Management Agreement have has been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' ’ rights generally and by general equitable principles.
(de) The Manager will enter into the Management Agreement with the Company. The Management Agreement has been duly authorized by the financial resources available to Manager, and when executed and delivered by the Manager will constitute a valid and binding agreement of the Manager enforceable against it necessary for in accordance with its terms, except as the performance enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting the enforceability of its services creditors’ rights and obligations general principles of equity.
(f) Except as contemplated described in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement Disclosure Package and the Management Agreement.
(e) The description of Prospectus, since the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date respective dates as of which information is given in the Registration Statement and Statement, the Prospectus (and any amendment Disclosure Package or supplement to either of them)the Prospectus, except as otherwise stated therein, (A) there has been no materialManager Material Adverse Effect.
(g) The Manager is duly registered with the Commission as an investment adviser under the Investment Advisers Act of 1940, adverse change in as amended (the condition (financial or other“Advisers Act”), business, properties, net assets or results of operations or business prospects and the Manager is not prohibited by the Advisers Act from acting under the Management Agreement as the manager of the ManagerCompany, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into as contemplated by the Manager which are material to Registration Statement, the Manager other than those in the ordinary course of its business as described in Disclosure Package and the Prospectus.
(h) The Neither the Manager has such licenses, permits and authorizations nor any of governmental its subsidiaries is in violation of its organizational documents or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in default in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsperformance or observance of any obligation, agreement, covenant or after notice or lapse of time would allow, revocation or termination thereof or results condition contained in any other material impairment contract, indenture, mortgage, deed of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Acttrust, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery loan or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material credit agreement, indenturenote, lease or other agreement or instrument to which the Manager or any of its subsidiaries is a party or by which it or any of its properties them may be bound or materially violates or will materially violate any material statutebound, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in or any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.of
Appears in 2 contracts
Sources: Underwriting Agreement (Tremont Mortgage Trust), Underwriting Agreement (Tremont Mortgage Trust)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerFund.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Advisors Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site website or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen California Municipal Advantage Fund)
Representations and Warranties of the Manager. The Manager hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as followsthe case may be, that:
(a) The information provided by the Manager, set forth under the headings “Summary—Initial Portfolio,” “Summary—Non-Competition Agreement,” “Summary—Our Management Agreement,” “Business—Initial Portfolio,” “Business—Our Operations,” “Our Manager and the Management Agreement,” and “Certain Relationships and Related Transactions” in the Registration Statement, the Time of Sale Information and the Prospectus (collectively, the “Manager Disclosures”) is a corporation true and correct in all material respects. As of the date of this Agreement, the Manager has no plan or intention to materially alter its capital investment policy or investment allocation policy with respect to the Company as described in the Registration Statement, the Time of Sale Information and the Prospectus.
(b) The Manager has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate Delaware and has limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement to either of them) enter into and perform its obligations under this Agreement and the Management Agreement; and the Manager is duly registered and qualified as a foreign limited liability company to conduct transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or place where leasing of property or the nature of its properties or conduct of its business requires such registration or qualificationbusiness, except where the failure so to register qualify or to qualify be in good standing would not have not, individually or in the aggregate, reasonably be expected to result in a materialMaterial Adverse Effect.
(c) This Agreement has been duly authorized, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of executed and delivered by the Manager.
(bd) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and at the Management Agreement have been Closing Date will be duly executed and delivered by the Manager and will constitute the a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples and the discretion of the court before which any proceeding may be brought.
(de) The Manager has the financial resources available to it necessary for is not (i) in violation of its organizational documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreements to which it is bound, or which any of its services property or assets is subject, except, in the case of (ii) above, for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and obligations as the execution, delivery and performance of this Agreement and the Management Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description Time of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement Sale Information and the Prospectus (and any amendment or supplement thereto) complied compliance by the Manager with its obligations hereunder and comply in thereunder have been duly authorized by all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules necessary limited liability company action and Regulations and the Advisers Act Rules and Regulations and did do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Managernot, whether with or not arising from without the ordinary course giving of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse passage of time would allowor both, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of of, or a default or Debt Repayment Triggering Event under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the its property or assets is subject (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the limited liability company agreement or other organizational documents of the Manager or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Manager or any of its assets, properties or operations.
(f) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, (i) there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting the Manager that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement and the Management Agreement or the performance by the Manager of its obligations hereunder or thereunder; and (ii) the aggregate of all pending legal or governmental proceedings to which the Manager is a party or of which any of its property or assets is the subject, including ordinary routine litigation incidental to the business, would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(g) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder, in connection with the offering or the consummation of the transactions contemplated by this Agreement and the Management Agreement, except such as have been already obtained or as may be required under the Securities Act or state securities laws or as are described in the Registration Statement, the Time of Sale Information or the Prospectus.
(h) The Manager has not been notified that any executive officer of the Company or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Company, any executive officer or key employee of the Company or the Manager, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the Time of Sale Information and the Prospectus.
(i) The Manager intends to operate a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated by it on behalf of the Company or the Operating Partnership pursuant to its duties set forth in the Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s or the Operating Partnership’s assets is permitted only in accordance with management’s general or specific authorization.
(j) The duties of the Manager set forth in the Management Agreement and disclosed in the Registration Statement, the Time of Sale Information and the Prospectus are not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Manager has not taken taken, and will not take, directly or indirectly, any action that constituted, or any action designed to to, or which should that might reasonably be expected to cause or result in or which will constitute, under the Securities Act or otherwise, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates security of the Manager.
(l) In the event that the Fund Company or the Manager makes available Operating Partnership to facilitate the sale or resale of the Stock or for any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofpurpose.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to to, and agrees with, each Underwriter as follows:
(a) The Manager has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of the State jurisdiction of Delawareits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and the Manager is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for or the Fund Fee Agreements as contemplated by the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, ; the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement, the Management Agreement and the Management Agreement Fee Agreements have been duly and validly authorized by the Manager Manager; and this Agreement, the Management Agreement and the Management Agreement Fee Agreements, have been duly executed and delivered by the Manager Manager, and constitute each such agreement constitutes the valid and legally binding agreements agreement of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the each Preliminary Prospectus (or any amendment or supplement thereto) and Prospectus and under this Agreement, the Management Agreement and the Management AgreementFee Agreements, as applicable.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving the Manager or its property is pending or, to the best knowledge of the Manager, threatened against the Manager or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, material adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management AgreementAgreement or the Fee Agreements or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Manager, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to the Manager that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or otherotherwise), businessprospects, propertiesearnings, net assets business or results of operations or business prospects properties of the Manager, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) The Manager has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the manner described aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Manager, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement, the Management Agreement and the Management Agreement Fee Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement or the Fee Agreements except such as have been made or obtained under the Act, the Exchange Act, the Advisers Act, the 1940 Act, the rules and regulations of FINRA and the Exchange, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement, the Management Agreement or the Management Agreement by Fee Agreements nor the Managerconsummation of the transactions herein or therein contemplated, nor the consummation by the Manager fulfillment of the transactions contemplated hereby terms hereof or thereby (A) requires any consentthereof, approvalconflict with, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default underviolation of, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to to, (i) the Organizational Documents of the Manager, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it the Manager is a party or by which it may be bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Manager of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Manager or any of the property or assets of the Manager is subjectits properties.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the The Manager has not taken and will not taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in or which will constituteviolation of federal securities laws, in stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(lm) In the event that the Fund Fund, the Manager, the Subadviser or any of the Manager makes Non-U.S. Subadvisers make available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof.
(n) The operations of the Manager and its subsidiaries are and have been conducted at all times in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Manager or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Manager, threatened.
(o) The Manager maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement and the Fee Agreements are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) Neither the Manager nor, to the knowledge of the Manager, any director, officer, agent, employee or affiliate of the Manager is aware of or has taken any action in connection with the Manager, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Manager, and to the knowledge of the Manager, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(q) Neither the Manager nor, to the knowledge of the Manager, any director, officer, agent, employee or affiliate of the Manager is currently subject to any U.S. sanctions administered by OFAC; and the Manager will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Any certificate signed by any officer of the Manager and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Manager, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Western Asset Global Corporate Defined Opportunity Fund Inc.)
Representations and Warranties of the Manager. The Manager -------------------------------------------------- represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen New Jersey Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as followsthe case may be, that:
(a) The information regarding the Manager, set forth under the headings “Prospectus Summary—Management Agreement,” “Our Manager and the Management Agreement” and “Certain Relationships and Related Person Transactions” in the Registration Statement, the Time of Sale Information and the Prospectus is a corporation accurate and complete in all material respects.
(b) The Manager has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate Delaware and has the limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement to either of them) enter into and perform its obligations under this Agreement and the Management Agreement, and the Manager is duly registered and qualified as a foreign limited liability company to conduct transact business and is in good standing in each other jurisdiction or place where the nature of its properties or conduct of its business requires in which such registration or qualificationqualification is required, except where the failure to so to register qualify or to qualify be in good standing would not not, individually or in the aggregate, reasonably be expected to have a material, material adverse effect on the condition (financial or otherotherwise), business, properties, assets, net assets or worth, results of operations or prospects of the Manager.
Manager (b) The a “Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement theretoMaterial Adverse Effect”).
(c) The Manager This Agreement has full power been duly authorized, executed and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance delivered by the Manager of its obligations under, this Agreement and the Manager.
(d) The Management Agreement have has been duly and validly authorized by the Manager and this Agreement and and, on the Management Agreement have been Closing Date, will be duly executed and delivered by the Manager and will constitute the a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except to the extent that enforceability may be limited by (i) the application of bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and (ii) general equitable principles being applied at the discretion of a court before which any proceeding may be brought, except as to rights to indemnity and contribution hereunder thereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreementlaws.
(e) The description Manager is not (i) in violation of the Manager and its business, and the statements attributable to the Manager, organizational documents or (ii) in default in the Registration Statement and the Prospectus (and performance or observance of any amendment obligation, agreement, covenant or supplement thereto) complied and comply condition contained in all material respects with the provisions any agreements to which it is bound, or which any of the 1933 Actits property or assets is subject, the 1940 Actexcept, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus(ii) above, in light of the circumstances under which they were made) not misleading.
(f) There are no legal for such defaults that would not, individually or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that aggregate, reasonably should be expected to result in any materiala Manager Material Adverse Effect. The execution, adverse change in the condition (financial or other), business, properties, net assets or results delivery and performance of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This this Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby herein and therein and compliance by the Manager with its obligations hereunder and thereunder do not and will not, whether with or thereby (A) requires any consentwithout the giving of notice or passage of time or both, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of of, or a default or Debt Repayment Triggering Event under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to any agreement to which the Manager is bound or to which any of its properties or assets is subject (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect), nor will such action result in any violation of the provisions of the organizational documents of the Manager or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Manager or any of its properties or assets.
(f) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Manager Material Adverse Effect.
(g) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting the Manager that would, individually or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement and the Management Agreement or the performance by the Manager of its obligations hereunder or thereunder.
(h) Neither the Manager nor any member, officer, or employee of the Manager nor, to the knowledge of the Manager, any agent, affiliate or other person associated with or acting on behalf of the Manager has: (A) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (C) violated or is in violation of any provision of the Anti-Corruption Laws; or (D) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Manager has instituted, maintains and enforces, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with the Anti-Corruption Laws.
(i) The operations of the Manager are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Anti-Money Laundering Laws of all jurisdictions having jurisdiction over the Manager, and no action, suit or proceeding by or before any governmental agency, authority or body involving the Manager with respect to the Anti-Money Laundering Laws of any jurisdiction having jurisdiction over the Manager is pending or, to the knowledge of the Manager, threatened.
(j) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder, in connection with the offering or the consummation of the transactions contemplated by this Agreement and the Management Agreement, except such as have been already obtained or as may be required under the Securities Act or state securities laws or as are described in the Registration Statement, the Time of Sale Information or the Prospectus.
(k) The Manager possesses all licenses, certificates, permits and other authorizations issued by, and has made all declarations and filings with, the appropriate federal, state, local or foreign governmental agency, authority or body having jurisdiction over the Manager that are necessary for the ownership or lease of its properties or assets or the conduct of its business as currently conducted and described in the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not reasonably be expected to have, singly or in the aggregate, a Manager Material Adverse Effect. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, the Manager has not received any notice or is otherwise aware of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where such revocation, modification or non-renewal would not reasonably be expected to have, singly or in the aggregate, a Manager Material Adverse Effect.
(l) The execution, delivery and performance by the Manager of this Agreement and the Management Agreement and the consummation of the transactions contemplated by this Agreement and the Management Agreement will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation under, or the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Manager pursuant to, any agreement or instrument to which it the Manager is a party or by which it may be the Manager is bound or to which any of the property properties or assets of the Manager is subject, (B) result in any violation of the provisions of the certificate of formation or limited liability company agreement of the Manager or (C) result in the violation of any law or statute applicable to the Manager or any judgment, order, rule or regulation of any governmental agency, authority or body having jurisdiction over the Manager or any of its properties or assets, except, in the case of clauses (A) and (C) above, for any such conflict, breach, violation, default, acceleration, lien, charge or encumbrance that would not reasonably be expected to have, singly or in the aggregate, a Manager Material Adverse Effect.
(km) Except The Manager has not been notified that any executive officer of the Company or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Company, any executive officer or key employee of the Company or the Manager, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as stated described in this the Registration Statement, the Time of Sale Information and the Prospectus.
(n) The Manager will have access to the personnel and other resources necessary for the performance of the duties of the Manager set forth in the Management Agreement and as disclosed in the Prospectus Registration Statement, the Time of Sale Information and the Prospectus.
(o) The Manager intends to operate a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated by it on behalf of the Transaction Entities and their subsidiaries (after giving effect to the Formation Transactions) pursuant to its duties set forth in the Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s or the Operating Partnership’s assets is permitted only in accordance with management’s general or specific authorization.
(p) The Manager is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in any amendment such amounts as are prudent and customary for the businesses in which the Manager is engaged; all policies of insurance and fidelity or supplement thereto)surety bonds insuring the Manager or its business, assets, employees, officers and directors are in full force and effect; and the Manager has not taken been refused any insurance coverage sought or applied for.
(q) The Manager (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares.
(r) The Manager has not taken, and will not take, directly or indirectly, any action that constituted, or any action designed to to, or which should that might reasonably be expected to cause or result in or which will constitute, under the Securities Act or otherwise, stabilization or manipulation of the price of any security of the Common Transaction Entities to facilitate the sale or resale of the Shares in violation or for any other purpose. Any certificate signed by any officer or any authorized representative of federal securities laws and the Manager is not aware of any such action taken and delivered to the Underwriters or to counsel for the Underwriters shall be taken deemed a representation and warranty by any affiliates the Manager to the Underwriters as to the matters covered thereby as of the Managerdate or dates indicated on such certificate.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Alpine Income Property Trust, Inc.)
Representations and Warranties of the Manager. The Manager --------------------------------------------- represents and warrants to each Underwriter of the Trustees and the Participants, as followsof the date hereof:
(a) The the Manager is a corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the State of DelawareNew York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered licensed or qualified 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 in which the failure to so to register or to qualify would not have a material, material adverse effect on its ability to carry on its business as now conducted or to execute, deliver and perform its obligations under the condition (financial or other)Manager Agreements, businesshas the corporate power and authority to carry on its business as now conducted, propertiesand has the requisite power and authority to execute, net assets or results of operations of deliver and perform its obligations under the Manager.Manager Agreements;
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement Agreements have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly all necessary corporate action, executed and delivered by the Manager Manager, and constitute the legal, valid and legally binding agreements obligations of the Manager, enforceable against the Manager in accordance with their terms, respective 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' the rights of creditors generally and by general equitable principles.principles of equity;
(c) the execution, delivery and performance by the Manager of each Manager Agreement and compliance by the Manager with all of the provisions thereof do not and will not contravene any law or regulation, or any order of any court or governmental authority or agency applicable to or binding on the Manager or any of its properties, or contravene the provisions of, or constitute a default by the Manager under, its certificate of incorporation or by-laws or any indenture, mortgage, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its properties may be bound or affected;
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There there are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in court or before any governmental authority or arbitration board or tribunal which would materially adversely affect the condition (financial or other), business, properties, net assets or results of operations of Manager's ability to perform its obligations under the Manager or that reasonably should be expected to have a material, adverse effect on the ability of Agreements;
(e) the Manager to fulfill its obligations hereunder is not in violation of any term of any charter instrument, by-law or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or bound. The Manager is in compliance with all laws, ordinances, governmental rules and regulations to which any of it is subject, the property failure to comply with which would have a material and adverse effect on its operations or assets condition, financial or otherwise, or would impair the ability of the Manager is subject.to perform its obligations under the Manager Agreements, and has obtained all licenses, permits, franchises and other governmental authorizations material to the conduct of its business;
(f) to the best knowledge of the Manager, no Event of Loss has occurred as of the date of this Agreement with respect to any Unit;
(g) (i) GATC shall have, and the GATC Xxxx of Sale to be delivered on the Closing Date shall convey to the Company, all legal and beneficial title to the Units which are being delivered on the Closing Date, free and clear of all Liens (other than Permitted Liens of the type described in clause (ii) hereof with respect to the Existing Car Service Contracts, and in clauses (iv) and (vii) of the definition thereof), and such conveyance will not be void or voidable under any applicable law; (ii) GATC shall have, and the GATC Assignment to be delivered on the Closing Date shall assign to the Company, all legal and beneficial title to the Existing Car Service Contracts, free and clear of all Liens (other than Permitted Liens), and such assignment will not be void or voidable under any applicable law; and (iii) all of the Units shall be subject to sublease by Customers under the Existing Car Service Contracts on rental and other terms which are no different, taken as a whole, than those for similar railcars in the rest of the Manager's Fleet;
(h) all sales, use or transfer taxes due and payable upon the sale of the Equipment and assignment of Existing Car Service Contracts by GATC to the Company will have been paid or such transactions will then be exempt from any such taxes and GATC will cause any required forms or reports in connection with such taxes to be filed in accordance with applicable laws and regulations;
(i) the Units are substantially similar in terms of objectively identifiable characteristics that are relevant for purposes of the services to be performed by the Manager under the Management Agreement to the equipment in the Manager's Fleet;
(j) in selecting the Units to be sold to the Company pursuant to the GATC Xxxx of Sale, GATC has not discriminated against the Company in a negative fashion when such Units are compared with the other equipment in the Manager's Fleet; and
(k) Except as stated neither the Prospectus nor any written statement furnished by the Manager or on behalf of the Manager in this connection with the negotiation of the Lease or any other Operative Agreement contains any untrue statement of a material fact or omits a material fact necessary to make the statements contained therein or herein not misleading. The assumptions and related financial information relating to the proposed business and operations of the Manager and the Company Fleet which are contained under ["Structuring Assumptions"] in the Prospectus (the "Structuring Assumptions") have been prepared in good faith based upon information that the Manager deems fair and reasonable, and there are no statements or conclusions in any amendment of the Structuring Assumptions which are based upon or supplement thereto), include information known to the Manager to be misleading in any material respect or which fail to take into account material information known to the Manager regarding the matters stated therein. There is no fact which the Manager has not taken and will not takedisclosed in writing which materially adversely affects or, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and so far as the Manager is not aware of any such action taken can now reasonably foresee, will materially adversely affect the properties, business, prospects, profits or to be taken by any affiliates condition (financial or otherwise) of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Participation Agreement (General American Railcar Corp Ii)
Representations and Warranties of the Manager. The Manager represents --------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Ohio Dividend Advantage Municipal Fund 2)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as followsof the Underwriters that:
(ai) The information in the sections "Fortress Investment Group LLC" and "Officers of Our Manager" under the caption "Our Manager and the Management Agreement" in the Prospectus is true and correct in all material respects.
(ii) The Manager is a corporation has been duly organized and is validly existing as a limited liability company and is in good standing under the laws of Delaware. The Manager is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which the State character or location of Delawareits properties (owned, with full corporate leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate have a Material Adverse Effect. The Manager has all requisite power and authority authority, and all necessary Governmental Licenses, to own, lease and operate its properties and to conduct its business as described it is now being conducted, except where the failure to possess such Governmental Licenses will not in the aggregate have a Material Adverse Effect, and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerProspectus.
(biii) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this This Agreement and the Management Agreement have each been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the Manager. The Management Agreement constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to or affecting enforcement of creditors' rights generally and or by general equitable principles.
(div) The Manager has the financial resources available to it necessary for the performance is not (i) in violation of its services and obligations as contemplated charter or limited liability company agreement or (ii) in the Registration Statementdefault under, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowswhich, or after with notice or lapse of time or both, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any constitute such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon upon, any property or assets of the Manager or any of its subsidiaries pursuant to the terms to, any indenture, mortgage, deed of any trust, loan agreement or other agreement or instrument to which it is a party or by which it may be is bound or to which any of the its property or assets is subject or in violation in any respect of any statute or any judgment, decree, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Manager or any of its subsidiaries or any of their properties or assets, except in the case of (ii) above any default or event that would not have a Material Adverse Effect.
(v) Except as described in the Prospectus, there is no legal or governmental proceeding to which the Manager or any of its subsidiaries is a party, or of which any property of the Manager or any of its subsidiaries is subjectthe subject which, singularly or in the aggregate, if determined adversely to the Manager or any of its subsidiaries, are reasonably likely to have a Material Adverse Effect, and to the best of the Manager's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others.
(kvi) Except as stated in this Agreement and No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder which have not been made or the failure of which to have been made in the Prospectus aggregate would not have a Material Adverse Effect.
(and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the vii) The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of 1940, as amended (the Manager.
(l) In the event that the Fund "Advisers Act"), or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from acting under the Management Agreement as contemplated by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to and agrees with each Underwriter as followsof the Underwriters that:
(a) The a. the information regarding the Manager in the Registration Statement, the Preliminary Prospectus and the Prospectus as set forth on Schedule D hereto is a corporation true and correct in all material respects;
b. the Manager has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectuses, the Prospectus and the Prospectus (Permitted Free Writing Prospectuses, if any, to execute and any amendment or supplement to either of them) and deliver this Agreement;
c. the Manager is duly registered and qualified to conduct do business as a foreign corporation and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so to register qualified and in good standing would not, individually or to qualify would not in the aggregate, have a material, material adverse effect on the condition (financial or other), business, properties, net assets or financial condition, results of operations or prospects of the Manager.Manager (a “Manager Material Adverse Effect”);
(b) The Manager is d. this Agreement has been duly registered as an investment adviser under the Advisers Act authorized, executed and is not prohibited delivered by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under Manager;
e. the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery ofbeen duly authorized, and on the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement Closing Date will have been duly executed and delivered by the Manager and will constitute the a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.;
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of f. the Manager and its businessis not in breach or violation of or in default under (nor has any event occurred which, and the statements attributable to the Managerwith notice, in the Registration Statement and the Prospectus (and any amendment lapse of time or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Actboth, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to would result in any materialbreach or violation of, adverse change in constitute a default under or give the condition holder of any indebtedness (financial or other)a person acting on such holder’s behalf) the right to require the repurchase, business, properties, net assets redemption or results repayment of operations all or a part of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(gsuch indebtedness under) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no materialits certificate of formation or limited liability company agreement, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Manager it is a party or by which it or any of its properties may be bound or materially violates affected, the effect of which breach or will materially violate default under clause (B) could have a Manager Material Adverse Effect, or (C) any material statutefederal, state, local or foreign law, regulation or filing rule, or judgment(D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, injunctionor (E) any decree, judgment or order applicable to it or decree any of its properties;
g. the execution, delivery and performance of this Agreement and the Management Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Manager pursuant to) (A) any provision of the certificate of formation or the limited liability company agreement of the Manager, or (B) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its properties may be bound or affected, the effect of which could have a Manager Material Adverse Effect, or (C) any federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (E) any decree, judgment or order applicable to the Manager or any of its properties properties;
h. no approval, authorization, consent or will result in the creation order of or imposition filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority, or approval of any material lien, charge or encumbrance upon any property or assets member of the Manager pursuant to Manager, is required in connection with the terms execution 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 Manager is subject.
(k) Except as stated in this Agreement and the Management Agreement, or the consummation of the transactions contemplated hereby and thereby, in each case on the terms contemplated by the Registration Statement, the Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, except such as have already been obtained;
i. the Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any applicable law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, in order to conduct its business, except such as could not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and have a Manager Material Adverse Effect; the Manager is not aware in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such action taken license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, except where such violation, default, revocation or modification would not, individually or in the aggregate, have a Manager Material Adverse Effect;
j. there are no actions, suits, claims, investigations or proceedings pending or, to the Manager’s knowledge, threatened or contemplated to which the Manager or any of its directors or officers is or would be taken a party or of which any of its properties is or would be subject at law or in equity, before or by any affiliates federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority, except any such action, suit, claim, investigation or proceeding which, if resolved adversely to the Manager, would not, individually or in the aggregate, have a Manager Material Adverse Effect or prevent or materially interfere with consummation of the Manager.transactions contemplated hereby; and
(l) In k. the event that Manager is not prohibited by the Fund Investment Advisers Act of 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install Preliminary Prospectus and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (Provident Mortgage Capital Associates, Inc.)
Representations and Warranties of the Manager. The Manager --------------------------------------------- represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' " rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen New York Dividend Advantage Municipal Fund 2)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerFund.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Advisors Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen New York Municipal Advantage Fund)
Representations and Warranties of the Manager. The Manager -------------------------------------------------- represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuvven California Dividend Advantage Fund 2)
Representations and Warranties of the Manager. The Manager represents and warrants to and agrees with each Underwriter as followsof the Underwriters that:
(a) The the information regarding the Manager in the Registration Statement, the Preliminary Prospectus and the Prospectus as set forth on Schedule D hereto is a corporation true and correct in all material respects;
(b) the Manager has been duly organized formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectuses, the Prospectus and the Prospectus Permitted Free Writing Prospectuses, if any, to execute and deliver this Agreement;
(and any amendment or supplement to either of themc) and the Manager is duly registered and qualified to conduct do business as a foreign corporation and is in good standing in each jurisdiction or place where the nature ownership or leasing of its properties or the conduct of its business requires such registration or qualification, except where the failure to be so to register qualified and in good standing would not, individually or to qualify would not in the aggregate, have a material, material adverse effect on the condition (financial or other), business, properties, net assets or financial condition, results of operations or prospects of the Manager.Manager (a “Manager Material Adverse Effect”);
(bd) The Manager is this Agreement has been duly registered as an investment adviser under the Advisers Act authorized, executed and is not prohibited delivered by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under Manager;
(e) the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery ofbeen duly authorized, and on the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement Closing Date will have been duly executed and delivered by the Manager and will constitute the a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.;
(f) There are no legal or governmental proceedings pending orthe Sub-Advisory Agreement has been duly authorized, to and on the knowledge of the Manager, threatened against Closing Date will have been duly executed and delivered by the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations and will constitute a valid and binding agreement of the Manager enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or that reasonably should be expected to have a material, adverse effect on the ability other laws affecting enforcement of the Manager to fulfill its obligations hereunder creditors’ rights or under the Management Agreement.by general equitable principles;
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there Contingent Share Private Placement Agreement has been no materialduly authorized, adverse change in and on the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there Closing Date will have been no transactions entered into duly executed and delivered by the Manager which are material and will constitute a valid and binding agreement of the Manager enforceable in accordance with its terms, except to the Manager extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other than those in the ordinary course laws affecting enforcement of its business as described in the Prospectus.creditors’ rights or by general equitable principles;
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager is not in breach or violation of or in default under (nor has fulfilled and performed all its material obligations any event occurred which, with respect to such permits and no event has occurred which allowsnotice, or after notice or lapse of time or both, would allow, revocation or termination thereof or results result in any other material impairment breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the rights right to require the repurchase, redemption or repayment of the Manager under any all or a part of such permit.
(iindebtedness under) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consentits certificate of formation or limited liability company agreement, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Manager it is a party or by which it or any of its properties may be bound or materially violates affected, the effect of which breach or will materially violate default under clause (B) could have a Manager Material Adverse Effect, or (C) any material statutefederal, state, local or foreign law, regulation or filing rule, or judgment(D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, injunctionor (E) any decree, judgment or order applicable to it or decree any of its properties;
(i) the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement and the Contingent Share Private Placement Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Manager pursuant to) (A) any provision of the certificate of formation or the limited liability company agreement of the Manager, or (B) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its properties may be bound or affected, the effect of which could have a Manager Material Adverse Effect, or (C) any federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority, or (E) any decree, judgment or order applicable to the Manager or any of its properties properties;
(j) no approval, authorization, consent or will result in the creation order of or imposition filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority, or approval of any material lien, charge or encumbrance upon any property or assets member of the Manager pursuant to Manager, is required in connection with the execution of this Agreement, the Management Agreement, the Sub-Advisory Agreement and the Contingent Share Private Placement Agreement or the consummation of the transactions contemplated hereby and thereby, in each case on the terms of any agreement or instrument to which it is a party or contemplated by which it may be bound or to which any of the property or assets of Registration Statement, the Manager is subject.Preliminary Prospectus and the Prospectus, except such as have already been obtained;
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any applicable law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, in order to conduct its business, except such as could not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and have a Manager Material Adverse Effect; the Manager is not aware in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such action taken license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to be taken by any affiliates of the Manager., except where such violation, default, revocation or modification would not, individually or in the aggregate, have a Manager Material Adverse Effect;
(l) In there are no actions, suits, claims, investigations or proceedings pending or, to the event that Manager’s knowledge, threatened or contemplated to which the Fund Manager or any of its directors or officers is or would be a party or of which any of its properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority, except any such action, suit, claim, investigation or proceeding which, if resolved adversely to the Manager, would not, individually or in the aggregate, have a Manager Material Adverse Effect or prevent or materially interfere with consummation of the transactions contemplated hereby; and
(m) the Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install Preliminary Prospectus and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter the Selling Agent as follows:
(a) The Each Company has been formed pursuant to a Certificate of Formation (each a "Certificate of Formation") and a Limited Liability Company Operating Agreement (each an "Operating Agreement") which provide for the subscription for and sale of each Company's units of limited liability company interest ("Units") in classes; all action required to be taken by the Manager and each Company as a condition to the sale of the Units to subscribers who qualify as "Accredited Investors" within the meaning of the Securities Act of 1933, as amended (the "1933 Act") has been, or prior to the Initial and each Additional Closing Time (as defined in Section 2 hereof) will have been taken, and, upon payment of the consideration therefor specified in all accepted FuturesAccess Program Subscription and Exchange Agreements and Signature Pages thereto (collectively, the "Subscription Agreements"), the Units will constitute valid limited liability company interests in a Company.
(b) Each Company is a corporation limited liability company duly organized pursuant to a Certificate of Formation and the DLLCA and validly existing in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business and operations, as described in its Memorandum; each Company has received (or will receive prior to the Registration Statement and Initial Closing Time) a certificate of authority to do business in the Prospectus State of New Jersey.
(and any amendment or supplement to either of themc) and The Manager is duly registered organized and qualified to conduct business validly existing and is in good standing as a limited liability company under the laws of the State of Delaware and in good standing as a foreign limited liability company under the laws of the State of New Jersey and in each other jurisdiction or place where in which the nature of its properties or conduct of its business requires such registration or qualification, except where qualification and the failure to so to register or to qualify would not have a material, adverse effect on materially adversely affect the condition (financial Companies' or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's ability to perform its obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principleshereunder.
(d) The Each Company and the Manager has have full limited liability company power and authority under applicable law to perform their respective obligations under an Operating Agreement, an Escrow Agreement relating to the financial resources available offering of the Units (each an "Escrow Agreement"), the Customer Agreement ("Customer Agreement") and the Advisory Agreement ("Advisory Agreement") relating to it necessary for the performance trading of its services commodity interests and obligations this Agreement, as contemplated described in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.Memorandum. APPENDIX A
(e) The description Memorandum as of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions date of the 1933 Actissue, the 1940 Act, the Advisers Act, the Rules Initial Closing Time and Regulations and the Advisers Act Rules and Regulations and did not and at each Additional Closing Time will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they such statements were made) , not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Memorandum made in reliance upon and in conformity with information relating to the Trading Advisors and furnished or approved in writing by the Trading Advisors; it being acknowledged that each of the Trading Advisors have approved the information relating to such party or its principals, as set forth in the Memorandum.
(f) There are no legal or governmental proceedings pending or, to Since the knowledge respective dates as of the Manager, threatened against the Manager or to which any of its properties information is subject, that are required to be described given in the Registration Statement or the Prospectus (or Memorandum., there has not been any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations prospects of the Manager or that reasonably should be expected to have a materialthe Companies, adverse effect on whether or not arising in the ability ordinary course of the Manager to fulfill its obligations hereunder or under the Management Agreementbusiness.
(g) Since An Operating Agreement, an Escrow Agreement, a Customer Agreement, an Advisory Agreement and this Agreement have each been duly and validly authorized, executed and delivered by the date as Manager on behalf of which information is given each Company, and each constitutes a valid, binding and enforceable agreement of each Company, in accordance with its terms.
(h) The execution and delivery of the Operating Agreements, the Escrow Agreement, the Customer Agreement, the Advisory Agreement and this Agreement, the incurrence of the obligations set forth in each of such agreements and the consummation of the transactions contemplated therein and in the Registration Statement Memorandum will not constitute a breach of, or default under, any instrument by which either the Manager or a Company is bound or any order, rule or regulation applicable to the Manager or a Company of any court or any governmental body or administrative agency having jurisdiction over the Manager or a Company.
(i) There is not pending, or, to the best of the Manager's knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager or a Company is a party, or to which any of the assets of the Manager or a Company is subject, which is not referred to in the Memorandum and the Prospectus (and which might reasonably be expected to result in any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations or business prospects of the Manager, whether Manager or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsCompany.
(j) Neither The Manager has all federal and state governmental and regulatory approvals and licenses, and has effected all filings and registrations with federal and state governmental agencies required to conduct its business and to act as described in the executionMemorandum or required to perform its obligations as described under the Operating Agreements and this Agreement, delivery or and the performance of this Agreement such obligations will not contravene or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of any provision of its certificate of incorporation, by-laws or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indentureorder, lease law or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance binding upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectit.
(k) Except The Companies do not require any federal or state governmental or regulatory approvals or licenses, or need to effect any filings or registrations with any federal or state governmental agencies in order to conduct their business, to act as stated in this Agreement contemplated by the Memorandum and in to issue and sell Units (other than filings relating solely to the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation offering of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the ManagerUnits).
(l) In the event that the Fund or Deloitte & Touche LLP are, with respect to the Manager makes available any promotional materials intended for use only and the Companies, independent public accountants within the meaning of the 1933 Act and the regulations of the Securities and Exchange Commission ("SEC").
(m) The offer and sale of the Units in the manner contemplated by qualified broker-dealers and registered representatives thereof this Agreement will be exempt from the registration requirements of the 1933 Act by means reason of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofRegulation D promulgated thereunder.
Appears in 1 contract
Sources: Selling Agreement (ML Chesapeake FuturesAccess LLC)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings “Prospectus Summary – Our Manager”, “Prospectus Summary – Conflicts of Interest”, “Business – Our Manager”, “Business – Conflicts of Interest”, “Business – Resolutions of Potential Conflicts of Interest and Allocation of Investment Opportunities”, “Our Manager and the Management Agreement – Officers of Our Manager”, and “Our Manager and the Management Agreement – Investment Committee” in the Prospectus (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings (i) “Prospectus Supplement Summary – Our Manager,” “Prospectus Summary – Our Manager”, and “Risk Factors – Risks Associated With our Management and Relationship With our Manager” in the Prospectus, and (ii) “Business – Our Manager”, “Business – The Management Agreement”, “Risk Factors – Risks Associated With our Management and Relationship With our Manager”, and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Management Agreement and Related Party Transactions – Management Agreement” in the Company’s annual report on Form 10-K for the year ended December 31, 2008, incorporated by reference in the Registration Statement (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement and the Prospectus (and or any amendment or supplement to either of them) 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 would not have a material, adverse effect affect on the condition (financial or other), general affairs, business, properties, net assets or results of operations of the ManagerFund.
(b) The Manager is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and or the Prospectus (or any amendment or supplement theretoto either of them). There does not exist any proceeding which could reasonably expected to have a material adverse affect on the registration of the Manager with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that could reasonably be expected to result in any material, adverse change in the condition (financial or other), properties, net assets or results of operations of the Manager or that may have a material, adverse effect on the ability of the Manager to perform its obligations under this Agreement or the Management Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (i) requires the Manager to obtain any consent, approval, authorization or other order of, or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Manager or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or bylaws, or other organizational documents of the Manager or (ii) conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which the Manager or any of its properties may be bound, or materially violates or will materially violate any material statute, law, regulation or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject, except in any case under clause (i) or (ii) as should not reasonably be expected to have a material adverse effect on the ability of the Manager to perform its obligations under this Agreement and the Management Agreement. The Manager is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(e) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager'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 principlesprinciples whether enforcement is considered in a proceeding in equity or at law.
(df) The Manager has and Xxxxxxxx Advisors each have the financial resources available to it necessary for the performance of its their services and obligations as contemplated in the Registration Statement, Statement or the Prospectus (or any amendment or supplement theretoto either of them) and or under this Agreement and or the Management Agreement.
(eg) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and or the Prospectus (and or any amendment or supplement theretoto either of them) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectusthe Prospectus, in light of the circumstances under which they were made) not misleading.
(fh) There are no legal or governmental proceedings pending or, to Since the knowledge date as of the Manager, threatened against the Manager or to which any of its properties information is subject, that are required to be described given in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(hi) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the ProspectusProspectus (and any amendment or supplement thereto); the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(ij) This Agreement and the Management Agreement each comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in Agreement, the Registration Statement or the Prospectus (and or in any amendment or supplement theretoto any of the foregoing), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should might reasonably be expected to cause or result in or which will constitute, constitute stabilization or manipulation of the price of the Common Shares or of any securities issued by the Fund to facilitate the sale or resale of the Shares, in each case, in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(m) All advertising, sales literature or other promotional material (including "prospectus wrappers," "broker kits," "road show slides," and "road show scripts" authorized in writing by or prepared by or for the Fund or the Manager for use in connection with the offering and sale of the Shares (collectively, "sales material")) complied and comply in all respects with the applicable requirements of the 1933 Act, the 1933 Act Rules and Regulations and the rules and interpretations of the NASD and, if required to be filed with the NASD under the NASD's conduct rules, were so filed, and no such sales material, when read together with the Prospectus, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Sources: Underwriting Agreement (Seligman New Technologies Fund Ii Inc)
Representations and Warranties of the Manager. The Manager represents --------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Dividend Advantage Municipal Fund 2)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter the Selling Agent as follows:
(a) The Each Company has been formed pursuant to a Certificate of Formation (each a "Certificate of Formation") and a Limited Liability Company Operating Agreement (each an "Operating Agreement") which provide for the subscription for and sale of each Company's units of limited liability company interest ("Units") in classes; all action required to be taken by the Manager and each Company as a condition to the sale of the Units to subscribers who qualify as "Accredited Investors" within the meaning of the Securities Act of 1933, as amended (the "1933 Act") has been, or prior to the Initial and each Additional Closing Time (as defined in Section 2 hereof) will have been taken, and, upon payment of the consideration therefor specified in all accepted FuturesAccess Program Subscription and Exchange Agreements and Signature Pages thereto (collectively, the "Subscription Agreements"), the Units will constitute valid limited liability company interests in a Company.
(b) Each Company is a corporation limited liability company duly organized pursuant to a Certificate of Formation and the DLLCA and validly existing in good standing under the laws of the State of Delaware, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business and operations, as described in its Memorandum; each Company has received (or will receive prior to the Registration Statement and Initial Closing Time) a certificate of authority to do business in the Prospectus State of New Jersey.
(and any amendment or supplement to either of themc) and The Manager is duly registered organized and qualified to conduct business validly existing and is in good standing as a limited liability company under the laws of the State of Delaware and in good standing as a foreign limited liability company under the laws of the State of New Jersey and in each other jurisdiction or place where in which the nature of its properties or conduct of its business requires such registration or qualification, except where qualification and the failure to so to register or to qualify would not have a material, adverse effect on materially adversely affect the condition (financial Companies' or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's ability to perform its obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principleshereunder.
(d) The Each Company and the Manager has have full limited liability company power and authority under applicable law to perform their respective obligations under an Operating Agreement, an Escrow Agreement relating to the financial resources available offering of the Units (each an "Escrow Agreement"), the Customer Agreement ("Customer Agreement") and the Advisory Agreement ("Advisory Agreement") relating to it necessary for the performance trading of its services commodity interests and obligations this Agreement, as contemplated described in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.Memorandum. APPENDIX A
(e) The description Memorandum as of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions date of the 1933 Actissue, the 1940 Act, the Advisers Act, the Rules Initial Closing Time and Regulations and the Advisers Act Rules and Regulations and did not and at each Additional Closing Time will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they such statements were made) , not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Memorandum made in reliance upon and in conformity with information relating to the Trading Advisors and furnished or approved in writing by the Trading Advisors; it being acknowledged that each of the Trading Advisors have approved the information relating to such party or its principals, as set forth in the Memorandum.
(f) There are no legal or governmental proceedings pending or, to Since the knowledge respective dates as of the Manager, threatened against the Manager or to which any of its properties information is subject, that are required to be described given in the Registration Statement or the Prospectus (or Memorandum., there has not been any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations prospects of the Manager or that reasonably should be expected to have a materialthe Companies, adverse effect on whether or not arising in the ability ordinary course of the Manager to fulfill its obligations hereunder or under the Management Agreementbusiness.
(g) Since An Operating Agreement, an Escrow Agreement, a Customer Agreement, an Advisory Agreement and this Agreement have each been duly and validly authorized, executed and delivered by the date as Manager on behalf of which information is given each Company, and each constitutes a valid, binding and enforceable agreement of each Company, in accordance with its terms.
(h) The execution and delivery of the Operating Agreements, the Escrow Agreement, the Customer Agreement, the Advisory Agreement and this Agreement, the incurrence of the obligations set forth in each of such agreements and the consummation of the transactions contemplated therein and in the Registration Statement Memorandum will not constitute a breach of, or default under, any instrument by which either the Manager or a Company is bound or any order, rule or regulation applicable to the Manager or a Company of any court or any governmental body or administrative agency having jurisdiction over the Manager or a Company.
(i) There is not pending, or, to the best of the Manager's knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Manager or a Company is a party, or to which any of the assets of the Manager or a Company is subject, which is not referred to in the Memorandum and the Prospectus (and which might reasonably be expected to result in any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, material adverse change in the condition (financial or otherotherwise), business, properties, net assets business or results of operations or business prospects of the Manager, whether Manager or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsCompany.
(j) Neither The Manager has all federal and state governmental and regulatory approvals and licenses, and has effected all filings and registrations with federal and state governmental agencies required to conduct its business and to act as described in the executionMemorandum or required to perform its obligations as described under the Operating Agreements and this Agreement, delivery or and the performance of this Agreement such obligations will not contravene or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of any provision of its certificate of incorporation, by-laws or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indentureorder, lease law or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance binding upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.it. APPENDIX A
(k) Except The Companies do not require any federal or state governmental or regulatory approvals or licenses, or need to effect any filings or registrations with any federal or state governmental agencies in order to conduct their business, to act as stated in this Agreement contemplated by the Memorandum and in to issue and sell Units (other than filings relating solely to the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation offering of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the ManagerUnits).
(l) In the event that the Fund or Deloitte & Touche LLP are, with respect to the Manager makes available any promotional materials intended for use only and the Companies, independent public accountants within the meaning of the 1933 Act and the regulations of the Securities and Exchange Commission ("SEC").
(m) The offer and sale of the Units in the manner contemplated by qualified broker-dealers and registered representatives thereof this Agreement will be exempt from the registration requirements of the 1933 Act by means reason of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofRegulation D promulgated thereunder.
Appears in 1 contract
Sources: Selling Agreement (ML Transtrend DTP Enhanced FuturesAccess LLC)
Representations and Warranties of the Manager. The Manager represents ------------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Virginia Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents ------------------------------------------------ and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Pennsylvania Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to and agrees with each Underwriter as followsof the Underwriters that:
(a) The information regarding the Manager set forth under the headings “Prospectus Summary – Our Manager”, “Prospectus Summary – Our Relationship With Our Manager”, “Prospectus Summary – Conflicts of Interest”, “Business – Our Competitive Advantages”, “Our Manager and the Management Agreement”, “Management – Conflicts of Interest” in the Preliminary Prospectus is true and correct in all material respects;
(b) The Manager has been duly formed and is existing as a corporation duly organized and validly existing limited liability company in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other)and has full corporate power and authority necessary to own, businesshold, lease and/or operate its assets and properties, net assets or results of operations of to conduct the Manager.
(b) The Manager business in which it is duly registered engaged and as an investment adviser under described in the Advisers Act and is not prohibited by the Advisers ActRegistration Statement, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement Preliminary Prospectuses and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Manager is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions;
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Registration Statement, the Preliminary Prospectuses and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager;
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.;
(e) The description Manager is not in breach of, or in default under (nor has any event occurred which with notice, lapse of the Manager and its businesstime, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery formation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager limited liability company agreement or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of formation or limited liability company agreement of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager;
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated hereby and thereby, in each case on the terms contemplated by the Registration Statement, the Preliminary Prospectuses and the Prospectus, except such as have been already obtained;
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other persons, in order to conduct its business as described in the Registration Statement, the Preliminary Prospectuses and the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement, the Preliminary Prospectuses and the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect;
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subject.subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect; and
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic meansthe Registration Statement, the Manager will install Preliminary Prospectuses and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (MFResidential Investments, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each the Underwriter as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings (i) “Prospectus Supplement Summary – Our Manager” in the Prospectus, and (ii) “Business – Our Manager”, “Business – The Management Agreement”, “Risk Factors – Risks Associated With our Management and Relationship With our Manager”, and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Management Agreement and Related Party Transactions – Management Agreement” in the Company’s annual report on Form 10-K for the year ended December 31, 2009, incorporated by reference in the Registration Statement (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager --------------------------------------------- represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Michigan Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the ManagerFund.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Advisors Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmentalgovern mental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site website or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter as followsthat:
(a) The the Manager is a corporation limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware, with full corporate is duly qualified to do business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification, and has all power and authority to own, lease and operate its properties and necessary to conduct its business as described in the Registration Statement Statement, the Disclosure Package and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.Prospectus;
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full right, power and authority to enter into execute and deliver this Agreement and to execute and deliver the Transaction Documents to which the Manager is or will be a party and to consummate the transactions contemplated by this Agreement and such Transaction Documents; this Agreement and the Management Agreement, other Transaction Documents to which the execution and delivery of, Manager is or will be a party and the performance transactions contemplated by the Manager of its obligations under, this Agreement and the Management Agreement such Transaction Documents have been duly authorized and validly authorized approved by all necessary limited liability company action on the Manager part of the Manager, and this Agreement and the Management Agreement other Transaction Documents to which the Manager is a party have been duly executed and delivered by the Manager and will constitute the legal, valid and legally binding agreements of the Manager, enforceable against the Manager in accordance with their its terms, except in each case 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws relating to or affecting creditors' ’ rights generally generally, and by general equitable principles.principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(c) the Manager is not in violation of, in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a violation of, a breach of, or a default under) (i) the limited liability company agreement of the Manager (the “Manager Organizational Document”), (ii) any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its properties are bound or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager (including any law, regulation, rule, decree, judgment, permit or order applicable to it upon the consummation of the Transactions), except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), results of operations or prospects of the Manager (a “Manager Material Adverse Effect”);
(d) The except as described in Registration Statement, the Disclosure Package and the Prospectus, no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance by the Manager of this Agreement or the Management Agreement or the other Transaction Documents to which the Manager is or will be a party or the consummation by the Manager of the transactions contemplated by this Agreement and such Transaction Documents, other than such as have been obtained or made, or will have been obtained or made at the Closing Time;
(e) except as may be otherwise stated in the Registration Statement, the Disclosure Package and the Prospectus, there has not been any event, circumstance or change that has, or would reasonably be expected, individually or in the aggregate, to have, a Manager Material Adverse Effect or that could prevent the Manager from carrying out its obligations under this Agreement, the Management Agreement or the other Transaction Documents to which the Manager is a party;
(f) other than as set forth in the Registration Statement, the Disclosure Package and the Prospectus, there are no actions, suits, proceedings, inquiries or investigations pending against the Manager or any Transaction Entity or, to the knowledge of the Manager, threatened against the Manager or any Transaction Entity, any of their respective properties, directors, officers or affiliates at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency;
(g) the Manager has not been notified that any of the Manager’s officers, investment committee members, investment professionals or other key persons named in the Registration Statement, the Disclosure Package and the Prospectus plans to terminate his or her employment or association with the Manager; none of the Manager or any of the Manager’s officers, investment committee members or other key persons named in the Registration Statement, the Disclosure Package and the Prospectus is subject to any non-competition, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the business activities of the Company, the Subsidiary Partnership, any Subsidiary or the Manager as described in the Registration Statement, the Disclosure Package and the Prospectus;
(h) the Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the this Agreement, the Management Agreement or the other Transaction Documents to which the Manager is a party as described in the Registration Statement, the Disclosure Package and the Prospectus;
(i) the Manager has not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares;
(j) no labor disturbance by or dispute with employees of the Manager or any of its subsidiaries or, to the knowledge of the Manager, the Property Manager exists or, to the knowledge of the Manager, is contemplated or threatened, and the Manager is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not reasonably be expected to have a Manager Material Adverse Effect;
(k) any financial, performance, statistical or other data or information regarding the Manager and/or its subsidiaries or the Transaction Entities that is included in the Registration Statement, the Disclosure Package or the Prospectus is derived from their accounting or other applicable records, as applicable, and is true and correct in all material respects; nothing has come to the attention of the Manager that has caused the Manager to believe that any of the statistical, tenant and market-related data included in the Registration Statement, the Disclosure Package or the Prospectus is not based on or derived from sources that are accurate in all material respects and, to the extent required, the Manager has obtained the written consent to the use of such data from such sources;
(l) the Manager (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 of the Securities Act Regulations) that constitutes an offer to sell or solicitation of an offer to buy the Shares;
(m) the Manager operates under the Company’s system of internal accounting controls in order to provide reasonable assurances that (i) transactions effectuated by it on behalf of the Company, the Subsidiary Partnership or any Subsidiary pursuant to its duties set forth in the Management Agreement are executed in accordance with the general or specific authorization of the management of the Company and (ii) access to the Company’s, the Subsidiary Partnership’s or any Subsidiary’s assets is permitted only in accordance with the general or specific authorization of the management of the Company;
(n) each of the Manager and the Property Manager has the financial financial, personnel and other resources available to it necessary for the performance of its services and obligations as contemplated hereby and in the Management Agreement, the Property Management Agreements, the Registration Statement, the Disclosure Package and the Prospectus;
(o) each of the Manager and the Property Manager is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which the Manager and the Property Manager are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or the Property Manager or the Manager’s or the Property Manager’s business, assets, employees, officers and directors, as applicable, are in full force and effect, except as would not reasonably be expected to have a Manager Material Adverse Effect; neither the Manager nor the Property Manager has been refused any insurance coverage sought or applied for;
(p) the Property Manager is an S corporation duly incorporated and validly existing and in good standing under the laws of the State of California, is duly qualified to do business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification, and has all power and authority necessary to conduct its business as described in the Registration Statement, the Prospectus Disclosure Package and the Prospectus;
(q) each of the Transaction Entities has the legal power and authority to execute and deliver the Transaction Documents to which such Transaction Entity is a party and to consummate the transactions contemplated by such Transaction Documents;
(r) none of the Transaction Entities is in violation of, in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a violation of, a breach of, or a default under) (i) its certificate of incorporation, bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership or agreement of limited partnership of any such Transaction Entity (the “Transaction Entity Organizational Documents”) or (ii) any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which such Transaction Entity is a party or by which any of them or their respective properties are bound or (iii) any federal, state, local or foreign law, regulation or rule or any amendment decree, judgment, permit or supplement thereto) and under this Agreement and order applicable to such Transaction Entity (including any law, regulation, rule, decree, judgment, permit or order applicable to it upon the Management Agreement.
(e) The description consummation of the Manager and its businessTransactions), and the statements attributable to the Managerexcept, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a prospectusManager Material Adverse Effect;
(s) each Transaction Document (i) has been or prior to the Closing Time will be duly authorized by each Transaction Entity, to the extent any such party is a party thereto, and (ii) will constitute a legal, valid and binding agreement of such Transaction Entity enforceable in light accordance with its terms, except in each case as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the enforceability of the circumstances under which they were made) not misleading.indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(ft) There are no legal or governmental proceedings pending orthe Property Manager is owned and controlled by Avanath and MacFarlane; and
(u) the execution, delivery and performance by the Manager and, to the knowledge of the Manager, threatened against each of the Transaction Entities of any Transaction Document to which it is a party and performance by the Manager or and, to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects knowledge of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment each of the rights Transaction Entities of the Manager under any such permit.
(i) This Agreement Transaction Document to which it is a party, and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager and, to the knowledge of the Manager, each of the Transaction Entities of the transactions contemplated hereby or thereby (A) requires by any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument Transaction Document to which the Manager it is a party or by which it or any of its properties may be bound or materially violates or party, will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will not result in the creation or imposition of any material lien, charge charge, claim or encumbrance upon any property or assets asset of the Manager pursuant or the Transaction Entities or conflict with, or result in any violation of or any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a violation of or a breach of or a default under), (i) any provision of the Manager Organizational Document or, to the terms knowledge of the Manager, any Transaction Entity Organizational Documents, (ii) any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which it the Manager or any Transaction Entity is a party or by which it or its respective properties may be bound or affected or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, consent, license, permit or order applicable to which the Manager or any Transaction Entity (including any law, regulation, rule, decree, judgment, permit or order applicable to it upon the consummation of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and Transactions), except in the Prospectus case of clauses (and in any amendment ii) or supplement thereto)(iii) above for such conflicts, the Manager has breaches or defaults that have been validly waived or would not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause have, individually or result in the aggregate, a Manager Material Adverse Effect, or which will constitute, stabilization or manipulation a Manager Material Adverse Effect on consummation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Managertransaction contemplated hereby.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Aspire Real Estate Investors, Inc.)
Representations and Warranties of the Manager. (a) The Manager represents and warrants that it has adopted and implemented written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act and Rule 38a-1 under the 1940 Act, that are reasonably designed to each Underwriter as follows:
prevent violations of the federal securities laws and the rules thereunder by the Manager and its supervised persons (a) the “Adviser Compliance Procedures”). The Manager is a corporation duly organized represents and validly existing warrants that it has provided the Trust with summaries of the Adviser Compliance Procedures and agrees to permit the Trust’s Chief Compliance Officer to conduct reviews and oversight of such policies and procedures in good standing accordance with Rule 38a-1 under the laws 1940 Act. The Manager shall provide periodic reports to and notify the Trust’s Chief Compliance Officer and the Trust of any material violations of the State of Delawarefederal securities laws, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment material changes to the Adviser Compliance Procedures or supplement any other policies or procedures as they otherwise pertain to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction activities performed for 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations behalf of the ManagerTrust.
(b) The Manager is duly registered as an investment adviser represents and warrants that it has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and Rule 204A-1 of the Advisers Act and is not prohibited has provided the Trust with a copy of the code of ethics and evidence of its adoption, and will notify the Trust’s Chief Compliance Officer and the Trust of any material changes to its code of ethics. The Manager or the Manager’s Chief Compliance Officer shall, as required by Rule 17j-1, certify to the Trust that the Manager has complied with the requirements of Rule 17j-1 during each relevant period and that there has been no material violation of the Manager’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation and Manager has provided a written report to the Trust regarding the violation. Upon the written request of the Trust or the Trust’s Chief Compliance Officer, the Manager shall permit the Trust and its employees or agents to examine the reports required to be made by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting Manager under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement theretoRule 17j-1(d)(1).
(c) The Manager has full power shall use commercially reasonable efforts to maintain business continuity, disaster recovery and authority backup capabilities and facilities necessary to enter into this Agreement and perform its obligations hereunder as soon as practicable following a disruption or delay. On a timely basis as the Management AgreementTrust may reasonably request, the execution Manager shall provide sufficient information and delivery ofwritten certification regarding its written business continuity, disaster recovery and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager in accordance backup plan(s) or similar protocol with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject respect to the qualification that Funds to satisfy the enforceability of Trust’s reasonable inquiries and to assist the Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated Trust in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and complying with Rule 38a-1 under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act. The Manager shall notify the Trust, as soon as practicable by telephone, electronic mail or such other method of prompt communication as may be available under the Advisers Actcircumstances, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge occurrence of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of event requiring the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and implement any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager procedures under any such permitplans.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings (i) “Prospectus Supplement Summary – Our Manager” in the Prospectus, and (ii) “Business – Our Manager”, “Business – The Management Agreement”, “Risk Factors – Risks Associated With our Management and Relationship With our Manager”, and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Management Agreement and Related Party Transactions – Management Agreement” in the Company’s annual report on Form 10-K for the year ended December 31, 2009, incorporated by reference in the Registration Statement (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to or affecting enforcement of creditors' rights generally and or by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter and the Issuer Trustee as followsof the date of this Agreement and as of the Closing Date, that:
(a) The Manager is a corporation duly organized and validly existing in good standing the Registration Statement has been declared effective by the SEC under the laws Securities Act; the conditions to the use by the Manager of a Registration Statement on Form S-3 under the Securities Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Registration Statement and the Prospectus; no stop order suspending the effectiveness of the State Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of Delawarethe Manager, threatened by the SEC; and (i) on the Effective Date of the Registration Statement, the Registration Statement conformed in all material respects to the requirements of the Securities Act, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein, or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) at the time of filing of the Prospectus pursuant to Rule 424(b) and on the Closing Date the Prospectus and the Registration Statement will conform in all material respects to the requirements of the Securities Act, and such document will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing representations and warranties shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii) statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with full corporate power and authority information relating to own, lease and operate its properties and any Underwriter furnished to conduct its business as described any CBA Party in writing by such Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (and any amendment Prospectus, at the time they were or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where hereafter are filed with the nature of its properties or conduct of its business requires such registration or qualificationSEC, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and will comply in all material respects with the provisions requirements of the 1933 ActExchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder (collectively, the 1940 Act"EXCHANGE ACT") and, when read together with the Advisers Actother information in the Prospectus, at the Rules time the Registration Statement became effective, at the date of the Prospectus and Regulations and at the Advisers Act Rules and Regulations and Closing Date, did not and will not contain include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (therein, in the case of a prospectus, in light of the circumstances under which they were made, not misleading; provided, however, no representation or warranty is made as to documents deemed to be incorporated by reference in the Registration Statement as the result of filing any Current Report on Form 8-K at the request of the Underwriters except to the extent such documents accurately reflect or are accurately based upon information furnished by or on behalf of the CBA Parties to the Underwriters for the purpose of preparing such documents;
(c) each Issuer Free Writing Prospectus (as of its date) did not, and the Approved Offering Materials as of the date of the Approved Offering Materials did not and, in each case, as of the date of the first Contract of Sale will not and as at the Closing Date will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(fd) There are no legal The Manager was not, as of any date on or governmental proceedings pending orafter which a bona fide offer (as used in Rule 164(h)(2) of the Securities Act Regulations) of the Offered Notes was made an Ineligible Issuer, as such term is defined in Rule 405 of the Securities Act Regulations.
(e) to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, no event has occurred that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of would entitle the Manager to fulfill its obligations hereunder or direct the Issuer Trustee to retire as trustee of the Trust under clause 19.2 of the Management Agreement.Master Trust Deed; and
(gf) Since the date Trust is not and (i) upon the issuance and sale of the Notes as of which information is given contemplated in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated thereinthis Agreement, (Aii) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects application of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business net proceeds therefrom as described in the Prospectus.
, (hiii) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Managerparties to the Basic Documents of their respective obligations under the Basic Documents, nor and (iv) the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with by the CommissionBasic Documents, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with Trust will not be required to be registered as an "investment company" within the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements meaning of the NASD Division Investment Company Act of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under1940, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectas amended.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Medallion Trust Series 2007-1g)
Representations and Warranties of the Manager. 2.1. The Manager hereby represents and warrants on the date hereof, and shall be deemed to represent and warrant on the Closing Date, any Additional Closing Date and any other date as specified hereinafter or as the context may require, to each Underwriter as followsUnderwriter, that:
(a) The Manager is a corporation (i) has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, Delaware with full corporate or organizational power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement to either of themthereto) and is (ii) duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so to register or qualify has not had or is reasonably expected to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets worth, or results of operations operations, or prospects of the ManagerManager (a “Manager Material Adverse Effect”).
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the Manager’s execution and delivery of, of this Agreement and the performance by the Manager of its obligations under, under this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have has been duly executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principleslaws.
(dc) The Manager has the financial resources available to it necessary for the performance is not (A) in violation of its services and obligations limited liability company agreement or (B) except as contemplated would not, individually or in the Registration Statementaggregate, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in a Manager Material Adverse Effect, in violation of or in default under any materialagreement, adverse change in the condition (financial lease, contract, indenture or other)other instrument or obligation to which it is a party or by which it, business, or any of its properties, net assets or results is bound. The execution and delivery of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into this Agreement by the Manager which are material to and the Manager other than those fulfillment of the terms hereof do not and will not conflict with or result in a breach of any of the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental terms or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowsprovisions of, or after notice constitute a default or lapse of time would allowManager Repayment Event (as defined below) under, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions any indenture, mortgage, deed of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization trust or other order of agreement or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties is bound, (ii) its limited liability company agreement or will result (iii) any law, order, rule or regulation, judgment, order, writ or decree applicable to the Manager of any court or of any government, regulatory body or administrative agency or other governmental body having jurisdiction over the Manager or any of its properties, except in the creation case of clauses (i) and (iii), for such defaults that would not, individually or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto)aggregate, the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in a Manager Material Adverse Effect. As used herein, a “Manager Repayment Event” means any event or condition which will constitutegives the holder of any note, stabilization debenture or manipulation other evidence of indebtedness (or any person acting on such holder’s behalf) the price right to require the repurchase, redemption or repayment of the Common Shares in violation all or a portion of federal securities laws and such indebtedness by the Manager is not aware of any such action taken or prior to be taken by any affiliates of the Managerits stated maturity.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Sunrise Realty Trust, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings “Prospectus Summary – Our Manager”, “Prospectus Summary – Conflicts of Interest”, “Business – Our Manager”, “Business – Conflicts of Interest”, “Business – Resolutions of Potential Conflicts of Interest and Allocation of Investment Opportunities”, “Our Manager and the Management Agreement – Officers of Our Manager”, and “Our Manager and the Management Agreement – Investment Committee” in the Prospectus (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager ------------------------------------------------ represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Massachusetts Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents --------------------------------------------- and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) 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 would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and RegulationsRegulations .
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-pre- qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Nuveen Georgia Dividend Advantage Municipal Fund)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter and the Issuer Trustee as followsof the date of this Agreement and as of the Closing Date, that:
(a) The Manager is a corporation duly organized and validly existing in good standing the Registration Statement has been declared effective by the Commission under the laws Securities Act; the conditions to the use by the Manager of a Registration Statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, have been satisfied with respect to the Registration Statement and the Prospectus; no stop order suspending the effectiveness of the State Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of Delawarethe Manager, threatened by the Commission; and (i) on the Effective Date of the, Registration Statement, the Registration Statement conformed in all material respects to the requirements of the Securities Act, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein, or necessary to make the statements therein not misleading and (ii) at the time of filing of the Prospectus pursuant to Rule 424(b) and on the Closing Date the Prospectus and the Registration Statement will conform in all material respects to the requirements of the Securities Act, and such document will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing representations and warranties shall not apply to (i) that pall of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii) statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with full corporate power and authority information relating to own, lease and operate its properties and any Underwriter furnished to conduct its business as described any CBA Party in writing by such Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (and any amendment Prospectus, at the time they were or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where hereafter are filed with the nature of its properties or conduct of its business requires such registration or qualificationCommission, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this Agreement and the Management Agreement have been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly executed and delivered by the Manager and constitute the valid and legally binding agreements of the Manager, enforceable against the Manager 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 Manager's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and will comply in all material respects with the provisions requirements of the 1933 ActExchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the 1940 Act"EXCHANGE ACT") and, when read together with the Advisers Actother information in the Prospectus, at the Rules time the Registration Statement became effective, at the date of the Prospectus and Regulations and at the Advisers Act Rules and Regulations and Closing Date, did not and will not contain include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (therein, in the case of a prospectus, in light of the circumstances under which they were made) , not misleading.misleading provided, however no representation or warranty is made as to documents deemed to be incorporated by reference in the Registration Statement as the result of filing any Current Report on Form 8-K at the request of the Underwriters except to the extent such documents accurately reflect or are accurately based upon information furnished by or on behalf of the CBA Parties to the Underwriters for the purpose of preparing such documents;
(fc) There [ ] are no legal or governmental proceedings pending or, independent public accountants with respect to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, no event has occurred that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of would entitle the Manager to fulfill its obligations hereunder or direct the Issuer Trustee to retire as trustee of the Trust under clause 19.2 of the Management Agreement.Master Trust Deed; and
(gc) Since the date Trust is not and (i) upon the issuance and sale of the Notes as of which information is given contemplated in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated thereinthis Agreement, (Aii) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects application of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business net proceeds therefrom as described in the Prospectus.
, (hiii) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Managerparties to the Basic Documents of their respective obligations under the Basic Documents, nor and (iv) the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with by the CommissionBasic Documents, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with Trust will not be required to be registered as an "investment company" within the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements meaning of the NASD Division Investment Company Act of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under1940, the Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Manager pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Manager is subjectas amended.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the Manager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Sources: Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Representations and Warranties of the Manager. The Manager represents and warrants to each Underwriter of the Underwriters as followsof the date hereof, the Applicable Time, as of the time of purchase and, if applicable, at each additional time of purchase that:
(a) The information regarding the Manager set forth under the headings (i) “Prospectus Supplement Summary” in the Prospectus, and (ii) “Business – Our Manager”, “Business – Management Agreement”, “Risk Factors – Risks Associated With our Management and Relationship With our Manager”, and “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Management Agreement and Related Expenses” and “– Related Party Transactions – Management Agreement” in the Company’s annual report on Form 10-K for the year ended December 31, 2010, incorporated by reference in the Registration Statement (collectively, the “Manager Package”) is true and correct in all material respects.
(b) The Manager has been duly formed and incorporated and is existing as a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or place where lease of property or assets or the nature of its properties or conduct of its business requires such registration or qualification, except where the failure to so to register or to qualify would not have a materialMaterial Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) The Manager has full corporate power and authority necessary to own, hold, lease and/or operate its assets and properties, to conduct the business in which it is engaged and as described in the Prospectus and to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of perform its obligations under, under this Agreement and the Management Agreement and to consummate the transactions contemplated hereby, and the Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions.
(c) This Agreement and the transactions contemplated to be consummated by the Manager in this Agreement and the Prospectus have been duly and validly authorized by the Manager and this Agreement has been duly and validly executed and delivered by the Manager.
(d) The Management Agreement have has been duly authorized, executed and delivered by the Manager and constitute the constitutes a valid and legally binding agreements agreement of the Manager, Manager enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(de) The Manager is not in breach of, or in default under (nor has the financial resources available to it necessary for the performance any event occurred which with notice, lapse of its services and obligations as contemplated in the Registration Statementtime, the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to both would result in any materialbreach of, adverse change in the condition (financial or otherconstitute a default under), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions its certificate of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery incorporation or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of the Manager bylaws or (Bii) conflicts any obligation, agreement, covenant or will conflict with or constitutes or will constitute a breach of or a default undercondition contained in any contract, any material license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or materially violates affected, the effect of which breach or default under this clause (ii) could have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will materially violate not conflict with, or result in any material statutebreach of or constitute a default under (nor constitute any event which with notice, lawlapse of time, regulation or filing both would result in any breach of or judgmentconstitute a default under), injunction(i) any provision of the certificate of incorporation or bylaws of the Manager, order (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or decree applicable credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be bound or will result in affected, the creation effect of which could have a Material Adverse Effect, or imposition (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Manager.
(A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any material lien, charge stockholder or encumbrance upon any property or assets creditor of the Manager pursuant to the terms and (C) no waiver or consent under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which it the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected, and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Manager of its obligations under this Agreement and the transactions contemplated hereby or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been already obtained.
(g) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary permits, authorizations, consents and approvals from other Persons, in order to conduct its business as described in the Prospectus, except as such as could not have a Material Adverse Effect. The Manager is not required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Prospectus except as such as could not have a Material Adverse Effect. The Manager is not in violation of, or in default under, any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Material Adverse Effect.
(h) There are no actions, suits, claims, investigations, inquiries or proceedings pending or, to the best of the Manager’s knowledge, threatened to which the Manager or any of its officers or directors is a party or of which any of the property its properties or other assets of the Manager is subjectsubject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a Material Adverse Effect.
(ki) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not taken and will not take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the The Manager is not aware prohibited by the Investment Advisers Act of any such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund 1940, as amended, or the Manager makes available any promotional materials intended for use only rules and regulations thereunder, from performing under the Management Agreement as contemplated by qualified broker-dealers the Management Agreement and registered representatives thereof by means of an Internet web site or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofProspectus.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to to, and agrees with, each Underwriter as followsof the Underwriters that:
(a) The information in the section “About the Manager” regarding the Manager in the Pricing Prospectus and the Prospectus is a corporation true and correct in all material respects.
(b) The Manager has been duly organized and is validly existing as a corporation and is in good standing under the laws of Delaware. The Manager is duly qualified to do business and is in good standing (to the State extent such concept exists) as a foreign corporation in each jurisdiction in which the character or location of Delawareits properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate have a material adverse effect on the business, condition (financial or otherwise), results of operations, properties or prospects of the Manager and its subsidiaries, taken as a whole (a “Manager Material Adverse Effect”). The Manager has all requisite power and authority, and all necessary Consents of, with full corporate power and authority from all courts and regulatory and governmental agencies and bodies to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and it 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 qualificationnow being conducted, except where the failure so to register possess such power and authority or to qualify would such Consents will not in the aggregate have a materialManager Material Adverse Effect, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the Advisers Act and no such Consent contains a materially burdensome restriction that is not prohibited by adequately disclosed in the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Fund as contemplated by the Registration Statement Pricing Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) The Manager has full power and authority to enter into this Agreement and the Management Agreement, the execution and delivery of, and the performance by the Manager of its obligations under, this This Agreement and the Management Agreement have each been duly and validly authorized by the Manager and this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Manager and constitute the Manager. The Management Agreement constitutes a valid and legally binding agreements agreement of the Manager, enforceable against the Manager in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification extent that the enforceability of the Manager's obligations hereunder and thereunder enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and or other laws relating to affecting enforcement of creditors’ rights or affecting creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary for the performance is not (i) in violation of its services and obligations as contemplated in the Registration Statement, the Prospectus (charter or any amendment or supplement thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements attributable to the Manager, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of the Manager, threatened against the Manager or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Manager or that reasonably should be expected to have a material, adverse effect on the ability of the Manager to fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated thereinby-laws, (Aii) there has been no materialin default under, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of the Manager, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by the Manager which are material to the Manager other than those in the ordinary course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; the Manager has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allowswhich, or after with notice or lapse of time or both, would allow, revocation or termination thereof or results in any other material impairment of the rights of the Manager under any constitute such permit.
(i) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Management Agreement by the Manager, nor the consummation by the Manager of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation under or By-Laws of the Manager or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Manager is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Manager or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance Lien upon any property or assets of the Manager or any of its subsidiaries pursuant to the terms to, any indenture, mortgage, deed of any trust, loan agreement or other agreement or instrument to which it is a party or by which it may be is bound or to which any of the its property or assets is subject, or (iii) in violation in any respect of any statute, rule, regulation, judgment, decree or order of any court or regulatory or governmental agency or body having jurisdiction over the Manager or any of its subsidiaries or any of their properties or assets, except in the case of clauses (ii) and (iii) above for any default or event that would not have a Material Adverse Effect.
(e) Except as disclosed in the Pricing Prospectus and the Prospectus, there is no legal or governmental proceeding to which the Manager or any of its subsidiaries is a party or of which any property of the Manager or any of its subsidiaries is subject.
(k) Except as stated in this Agreement and the subject which, individually or in the Prospectus (and in any amendment or supplement thereto)aggregate, if determined adversely to the Manager has not taken and will not takeor any of its subsidiaries, directly or indirectly, any action designed to or which should could reasonably be expected to cause have a Material Adverse Effect; to the Manager’s knowledge, no such proceeding is threatened or result contemplated.
(f) No Consent of, with or from any court or regulatory or governmental agency or body having jurisdiction over the Manager or its subsidiaries or any of their properties is required for the performance by the Manager of its obligations hereunder which has not been obtained, except where the failure to obtain such Consents would not in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the aggregate have a Material Adverse Effect.
(g) The Manager is not aware prohibited by the Investment Advisers Act of any such action taken 1940, as amended, or to be taken the rules and regulations thereunder, from acting under the Management Agreement as contemplated by any affiliates the Pricing Prospectus and the Prospectus. Any certificate signed by or on behalf of the Manager.
(l) In the event that the Fund Company or the Manager makes available any promotional materials intended and delivered to the Representative or to counsel for use only the Underwriters shall be deemed to be a representation and warranty by qualified broker-dealers and registered representatives thereof by means of an Internet web site the Company or similar electronic means, the Manager will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access each Underwriter as to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofthe matters covered thereby.
Appears in 1 contract