Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, jointly and severally, represent and warrant to and agree with J▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(j) below), as of each Settlement Date and as of each Applicable Time (as defined in Section 7(a)(2)) as follows: (1) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission. (2) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to J▇▇▇▇ furnished to the Fund or the Adviser by or on behalf of J▇▇▇▇ for use therein.
Appears in 2 contracts
Sources: Sales Agreement (Miller/Howard High Income Equity Fund), Sales Agreement (Miller/Howard High Income Equity Fund)
Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, Adviser jointly and severally, represent and warrant to and agree with J▇▇▇▇ Jones as of the date hereof▇▇▇▇of, as of each Representation Date (as defined in Section 8(j7(j) below), as of each Settlement Date ) and as of each Applicable Time (as defined in Section 7(a)(2)6(a)(ii) and such representations and warranties to be true and correct in all material respects as of each Applicable Time) as follows:
(1i) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission.
(2ii) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”"APPLICABLE TIME") and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and any amendment or supplement thereto when filed with the Commission and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, Statement and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any and the Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to JJones furnished to t▇▇ ▇▇▇▇ furnished to the Fund or the Adviser nd in writing by or on behalf of J▇Jones expressly for ▇▇▇ ▇herein.
(iii) All the outstanding shares of capital stock of the Fund have been duly authorized and validly issued, are fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust and By Laws") nonassessable and are free of any preemptive or similar rights and have been offered and sold by the Fund in compliance with all applicable federal and state securities laws. No shares of capital stock, other than common shares of beneficial interest of the Fund, are issued or outstanding and the capitalization of the Fund conforms in all material respects to the description thereof in the Registration Statement and the Prospectus. The Placement Shares have been duly authorized for use issuance and sale pursuant to this Agreement and, when issued, delivered against payment therefore in accordance with this Agreement, will be validly issued and fully paid and nonassessable obligations of the Fund; and the Placement Shares will conform in all material respects to the description thereof in the Registration Statement and the Prospectus.
(iv) The Fund has been duly formed and is validly existing in good standing as a business trust under the laws of The Commonwealth of Massachusetts, with full 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 to enter into and perform its obligations under this Agreement and the Fund Agreements. The Fund 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 the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), general affairs, business, properties, business prospects, net assets or results of operations of the Fund, whether or not occurring in the ordinary course of business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened against the Fund or to which the Fund or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that could reasonably be expected to result in a Fund Material Adverse Effect, or that may have a material, adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. All descriptions in the Registration Statement and the Prospectus of any Fund documents are accurate in all material respects. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Securities Act or Investment Company Act.
(vi) The Fund is not in violation of its Declaration of Trust ("DECLARATION OF TRUST"), bylaws or other organizational documents or any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any decree of the Commission, the Financial Industry Regulatory Authority ("FINRA"), any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any other agency or any body or official having jurisdiction over the Fund or in breach or default in the performance of any of the Fund Agreements or any other obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound, except for such violation or such breach or default that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect.
(vii) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or order of or registration or filing with the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Fund (except such as have been already obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE MKT or compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement) or conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust, bylaws, or other organizational documents of the Fund or (B) (1) conflicts or will conflict with or constitutes or will constitute a breach of or a default under any of the Fund Agreements or any other agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (2) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon (collectively, a "LIEN") any property or assets of the Fund 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 Fund is subject, except for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. The Fund is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(viii) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund other than those in the ordinary course of its business as described in the Prospectus and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its common stock, except for regular dividends consistent with past practice.
(ix) The Fund's accountants, Deloitte & Touche LLP, who have audited the financial statements included in, and whose report appears in, the Registration Statement and the Prospectus (and any amendment or supplement to either of them), are an independent public accounting firm as required by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with related schedules and notes, included or incorporated by reference in the Registration Statement or the Prospectus present fairly the financial position of the Fund on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as disclosed therein and comply with all applicable accounting requirements under the Securities Act and the Investment Company Act; and the other financial and statistical information and data included in the Registration Statement or the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under Rule 497 under the Securities Act, has taken all required action under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(xii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and each of the Fund Agreements have been duly executed and delivered by the Fund and each constitutes the valid and legally binding agreement of the Fund, enforceable against the Fund in accordance with its 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 Fund'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.
(xiii) Except as disclosed in or contemplated by the Registration Statement or the Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus, the Fund has not incurred any material liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, and there has not been any change in the capital stock (other than in connection with the transactions contemplated hereunder or pursuant to the Fund's dividend reinvestment plan) or any change or any development involving or which should reasonably be expected to involve a Fund Material Adverse Effect or its capitalization, or the incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to occur of (A) the applicable Settlement Date and (B) completion of the distribution of the Placement Shares contemplated by the applicable Placement Notice, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus, any "sales material" (as defined in Section 6(a)(xx) below) or other materials permitted by the Securities Act or the Investment Company Act.
(xv) The Fund 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 Fund 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 Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Fund.
(xvi) The Fund maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with the Fund's Board of Trustees' general or specific authorization and with the investment policies and restrictions of the Fund and the applicable requirements of the Securities Act, the Investment Company Act and the Internal Revenue Code of 1986, as amended, (the "CODE"); (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value and fee accruals, to maintain accountability for assets and to maintain compliance with the books and records requirements under the Investment Company Act; (C) access to assets is permitted only in accordance with the Board of Trustees' general or specific authorization; and (D) the recorded amount of assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund maintains "disclosure controls and procedures" (as such term is defined in Rule 30a-3 under the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in the Prospectus) does not require it to be the owner, possessor or licensee of any patents, patent licenses, trademarks, service marks or trade names which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in or which will constitute stabilization or manipulation of the price of the Placement Shares, or of any securities issued by the Fund, to facilitate the sale or resale of the Placement Shares in violation of federal securities laws and no such action has been, or will be, taken by any affiliates of the Fund.
(xix) The Fund is duly registered under the Investment Company Act as a closed-end, non-diversified management investment company and the notification of registration of the Fund as an investme
Appears in 1 contract
Sources: Sales Agreement (First Trust Energy Income & Growth Fund)
Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, jointly and severally, represent and warrant to and agree with J▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(j7(j) below) and, except with respect to the first clause of Section 6(a)(iv), the entire Section 6(a)(vii), the entire Section 6(a)(xviii), the entire Section 6(a)(xxvii) and the entire Section 6(a)(xxxi), as of each Settlement Date and as of each Applicable Time (as defined in Section 7(a)(26(a)(ii)) ), as follows:
(1i) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission.
(2ii) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, Statement and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any and the Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to J▇▇▇▇▇ furnished to the Fund or the Adviser in writing by or on behalf of J▇▇▇▇▇ expressly for use therein.
(iii) The Fund has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to any of them), and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except to the extent that the failure to be so qualified would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), general affairs, business, properties, business prospects, net assets or results of operations of the Fund, whether or not occurring in the ordinary course of business (a “Fund Material Adverse Effect”). The Fund has no subsidiaries.
(iv) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of capital stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fund; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefore in accordance with this Agreement, will be fully paid and nonassessable by the Fund; the Placement Shares are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE Amex and the certificates for the Placement Shares, if any, are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not entitled to preemptive or other rights to subscribe for the Placement Shares; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Fund are outstanding, other than rights of reinvestment of dividends and capital gains distributions.
(v) The Fund’s registration statement on Form 8-A under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”) is effective.
(vi) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497 under the Securities Act, has taken all required action under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(vii) There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit to the Registration Statement, which are not described or filed as required by the Securities Act or the Investment Company Act; and the statements in the Registration Statement and the Prospectus under the headings “Description of Shares” and “Certain Provisions of the Maryland General Corporation Law and the Charter and Bylaws” fairly summarize the matters therein described.
(viii) The Fund has full corporate power and authority to enter into this Agreement. The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and, assuming due authorization, execution and delivery by each of the other parties thereto, constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Fund’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 (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ix) The Fund is duly registered under the Investment Company Act as a closed-end, non-diversified management investment company and the Fund’s notification of registration as an investment company under the Investment Company Act on Form N-8A, as amended from time to time (the “Investment Company Act Notification”), has been duly filed with the Commission. The Fund has not received any notice from the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the Investment Company Act Notification or the Registration Statement.
(x) Except as otherwise disclosed in the Prospectus, 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 Fund Agreements, except such as have been obtained from officials of applicable government entities, such as have been made or obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE Amex, and such as may be required under the blue sky laws of any jurisdiction in connection with the issuance and sale of the Placement Shares in the manner contemplated herein and in the Prospectus.
(xi) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of the charter or by-laws of the Fund, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound which has been filed as an exhibit to the Registration Statement or (iii) violates or will violate in any respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund 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 Fund is subject, except, in the case of clauses (ii) and (iii) of this paragraph, for such conflict, breach, default, violation or lien, charge or encumbrance that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements.
(xii) No holders of securities of the Fund have any rights to require the registration of such securities under the Registration Statement.
(xiii) The financial statements, together with related schedules and notes, included or incorporated by reference in the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Fund as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Securities Act and the Investment Company Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus (other than the information contained in the table under the headings “Description of Shares” and “Price Range of Shares of Common Stock” in the Basic Prospectus and the information contained in Appendix A to the Basic Prospectus) are accurately derived from such financial statements and the books and records of the Fund.
(xiv) Except as otherwise disclosed in the Prospectus, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund or to which the Fund or any of its property is subject, is pending or, to the best knowledge of the Fund, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) could reasonably be expected to result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(xv) The Fund owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.
(xvi) The Fund is not (i) in violation of its charter or bylaws, (ii) in breach or default in any respect in the performance of 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 is a party or bound or to which its property is subject or (iii) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any material decree of the Commission, FINRA, any state securities commission, any foreign securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over the Fund, except, in the case of clauses (ii) and (iii) of this paragraph, for such breach, default or violation that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements.
(xvii) Since the date as of which information is given in the Prospectus, except as otherwise stated therein or in any amendment or supplement thereto, (i) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (ii) there have been no transactions entered into by the Fund which are material to the Fund other than those in the ordinary course of its business as described in the Prospectus and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its shares of common stock other than pursuant to the Fund’s managed distribution policy or as may be required for the Fund to maintain its qualification as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), or to avoid liability for excise taxes.
(xviii) PricewaterhouseCoopers LLP, who have audited the financial statements included or incorporated by reference in the Registration Statement and the Prospectus, have represented to the Fund that they are independent public accountants with respect to the Fund within the meaning of the Securities Act and the Investment Company Act.
(xix) The Fund has not distributed and, prior to the completion of the issuance and sale of the Placement Shares in accordance with this Agreement, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus or other materials permitted by the Securities Act or the Investment Company Act.
(xx) Any advertising, sales literature or other promotional material (including “prospectus wrappers”, “broker kits”, “road show slides” and “road show scripts”), whether in printed or electronic form, authorized in writing by or prepared by the Fund, Adviser or the Sub-Adviser for use in connection with the offering and sale of the Placement Shares (collectively, “sales material”) will comply in all material respects with the applicable requirements of the Securities Act, the Investment Company Act and the rules and interpretations of FINRA and if required to be filed with FINRA under FINRA’s conduct rules will be provided to counsel for ▇▇▇▇▇ for use filing. No sales material will contain an untrue statement of a material fact or omitted or omits 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.
(xxi) The Fund is insured against losses in such amounts as the Fund deems adequate; all policies of insurance insuring the Fund or its business, assets, employees, officers and directors, including the Fund’s directors and officers errors and omissions insurance policy and its fidelity bond required by Rule 17g-1 of the Investment Company Act, are in full force and effect; the Fund is in compliance with the terms of such policy and fidelity bond in all material respects; and there are no claims by the Fund under any such policy or fidelity bond as to which any insurance company is denying liability or defending under a reservation of rights clause; and the Fund has no reason to believe that it will not be able to renew its existing insurance coverage and fidelity bond as and when such coverage and fidelity bond expires or to obtain similar cover
Appears in 1 contract
Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, Adviser jointly and severally, represent and warrant to and agree with J▇Jones as of the d▇▇▇ as of the date hereof▇ereof, as of each Representation Date (as defined in Section 8(j7(j) below), as of each Settlement Date ) and as of each Applicable Time (as defined in Section 7(a)(2)) as follows:Section
(1i) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission.
(2ii) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, hereof and as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”"APPLICABLE TIME") and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and any amendment or supplement thereto when filed with the Commission and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, Statement and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any and the Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to J▇Jones furnished t▇ ▇▇▇ furnished to the Fund or the Adviser in writing by or on behalf of JJones expressly f▇▇ ▇▇▇▇ for use e therein.
(iii) All the outstanding shares of capital stock of the Fund have been duly authorized and validly issued, are fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust and By-Laws") nonassessable and are free of any preemptive or similar rights and have been offered and sold by the Fund in compliance with all applicable federal and state securities laws. No shares of capital stock, other than common shares of beneficial interest of the Fund, are issued or outstanding and the capitalization of the Fund conforms in all material respects to the description thereof in the Registration Statement and the Prospectus. The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued, delivered against payment therefore in accordance with this Agreement, will be validly issued and fully paid and nonassessable obligations of the Fund; and the Placement Shares will conform in all material respects to the description thereof in the Registration Statement and the Prospectus.
(iv) The Fund has been duly formed and is validly existing in good standing as a business trust under the laws of The Commonwealth of Massachusetts, with full 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 to enter into and perform its obligations under this Agreement and the Fund Agreements. The Fund 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 the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), general affairs, business, properties, business prospects, net assets or results of operations of the Fund, whether or not occurring in the ordinary course of business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened against the Fund or to which the Fund or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that could reasonably be expected to result in a Fund Material Adverse Effect, or that may have a material, adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. All descriptions in the Registration Statement and the Prospectus of any Fund documents are accurate in all material respects. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Securities Act or Investment Company Act.
(vi) The Fund is not in violation of its Declaration of Trust ("DECLARATION OF TRUST"), bylaws or other organizational documents or any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any decree of the Commission, the Financial Industry Regulatory Authority ("FINRA"), any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any other agency or any body or official having jurisdiction over the Fund or in breach or default in the performance of any of the Fund Agreements or any other obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound, except for such violation or such breach or default that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect.
(vii) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or order of or registration or filing with the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Fund (except such as have been already obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE or compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement) or conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust, bylaws, or other organizational documents of the Fund or (B) (1) conflicts or will conflict with or constitutes or will constitute a breach of or a default under any of the Fund Agreements or any other agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (2) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon (collectively, a "LIEN") any property or assets of the Fund 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 Fund is subject, except for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. The Fund is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(viii) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund other than those in the ordinary course of its business as described in the Prospectus and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its common stock, except for regular dividends consistent with past practice.
(ix) The Fund's accountants, Deloitte & Touche LLP, who have audited the financial statements included in, and whose report appears in, the Registration Statement and the Prospectus (and any amendment or supplement to either of them), are an independent public accounting firm as required by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with related schedules and notes, included or incorporated by reference in the Registration Statement or the Prospectus present fairly the financial position of the Fund on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as disclosed therein and comply with all applicable accounting requirements under the Securities Act and the Investment Company Act; and the other financial and statistical information and data included in the Registration Statement or the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under Rule 497 under the Securities Act, has taken all required action under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(xii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and each of the Fund Agreements have been duly executed and delivered by the Fund and each constitutes the valid and legally binding agreement of the Fund, enforceable against the Fund in accordance with its 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 Fund'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.
(xiii) Except as disclosed in or contemplated by the Registration Statement or the Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus, the Fund has not incurred any material liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, and there has not been any change in the capital stock (other than in connection with the transactions contemplated hereunder or pursuant to the Fund's dividend reinvestment plan) or any change or any development involving or which should reasonably be expected to involve a Fund Material Adverse Effect or its capitalization, or the incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to occur of (A) the applicable Settlement Date and (B) completion of the distribution of the Placement Shares contemplated by the applicable Placement Notice, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus, any "sales material" (as defined in Section 6(a)(xx) below) or other materials permitted by the Securities Act or the Investment Company Act.
(xv) The Fund 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 Fund 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 Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Fund.
(xvi) The Fund maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with the Fund's Board of Trustees' general or specific authorization and with the investment policies and restrictions of the Fund and the applicable requirements of the Securities Act, the Investment Company Act and the Internal Revenue Code of 1986, as amended, (the "CODE"); (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value and fee accruals, to maintain accountability for assets and to maintain compliance with the books and records requirements under the Investment Company Act; (C) access to assets is permitted only in accordance with the Board of Trustees' general or specific authorization; and (D) the recorded amount of assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund maintains "disclosure controls and procedures" (as such term is defined in Rule 30a-3 under the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in the Prospectus) does not require it to be the owner, possessor or licensee of any patents, patent licenses, trademarks, service marks or trade names which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in or which will constitute stabilization or manipulation of the price of the Placement Shares, or of any securities issued by the Fund, to facilitate the sale or resale of the Placement Shares in violation of federal securities laws and no such action has been, or will be, taken by any affiliates of the Fund.
(xix) The Fund is duly registered under the Investment Company Act as a closed-end, non-diversified management investment company and the notification of registration of the Fund as an investment company under the Investment Company Act on Form N-8A has been duly filed with the Commission, is effective, and, at the time of filing
Appears in 1 contract
Sources: Sales Agreement (First Trust New Opportunities MLP & Energy Fund)
Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, Adviser jointly and severally, represent and warrant to and agree with J▇▇▇▇ Jones as of the date hereofhe▇▇▇▇, as of each Representation Date (as defined in Section 8(j7(j) below), as of each Settlement Date ) and as of each Applicable Time (as defined in Section 7(a)(2)) as follows:Section
(1i) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission.
(2ii) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”"APPLICABLE TIME") and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and any amendment or supplement thereto when filed with the Commission and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, Statement and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any and the Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to JJones furnished to the ▇▇▇▇ furnished to the Fund or the Adviser in writing by or on behalf of JJones expressly for use ▇▇▇▇ ▇ein.
(iii) All the outstanding shares of capital stock of the Fund have been duly authorized and validly issued, are fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust and By Laws") nonassessable and are free of any preemptive or similar rights and have been offered and sold by the Fund in compliance with all applicable federal and state securities laws. No shares of capital stock, other than common shares of beneficial interest of the Fund, are issued or outstanding and the capitalization of the Fund conforms in all material respects to the description thereof in the Registration Statement and the Prospectus. The Placement Shares have been duly authorized for use issuance and sale pursuant to this Agreement and, when issued, delivered against payment therefore in accordance with this Agreement, will be validly issued and fully paid and nonassessable obligations of the Fund; and the Placement Shares will conform in all material respects to the description thereof in the Registration Statement and the Prospectus.
(iv) The Fund has been duly formed and is validly existing in good standing as a business trust under the laws of The Commonwealth of Massachusetts, with full 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 to enter into and perform its obligations under this Agreement and the Fund Agreements. The Fund 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 the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), general affairs, business, properties, business prospects, net assets or results of operations of the Fund, whether or not occurring in the ordinary course of business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened against the Fund or to which the Fund or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that could reasonably be expected to result in a Fund Material Adverse Effect, or that may have a material, adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. All descriptions in the Registration Statement and the Prospectus of any Fund documents are accurate in all material respects. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Securities Act or Investment Company Act.
(vi) The Fund is not in violation of its Declaration of Trust ("DECLARATION OF TRUST"), bylaws or other organizational documents or any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any decree of the Commission, the Financial Industry Regulatory Authority ("FINRA"), any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any other agency or any body or official having jurisdiction over the Fund or in breach or default in the performance of any of the Fund Agreements or any other obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound, except for such violation or such breach or default that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect.
(vii) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or order of or registration or filing with the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Fund (except such as have been already obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE or compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement) or conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust, bylaws, or other organizational documents of the Fund or (B) (1) conflicts or will conflict with or constitutes or will constitute a breach of or a default under any of the Fund Agreements or any other agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (2) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon (collectively, a "LIEN") any property or assets of the Fund 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 Fund is subject, except for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. The Fund is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(viii) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund other than those in the ordinary course of its business as described in the Prospectus and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its common stock, except for regular dividends consistent with past practice.
(ix) The Fund's accountants, Deloitte & Touche LLP, who have audited the financial statements included in, and whose report appears in, the Registration Statement and the Prospectus (and any amendment or supplement to either of them), are an independent public accounting firm as required by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with related schedules and notes, included or incorporated by reference in the Registration Statement or the Prospectus present fairly the financial position of the Fund on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as disclosed therein and comply with all applicable accounting requirements under the Securities Act and the Investment Company Act; and the other financial and statistical information and data included in the Registration Statement or the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under Rule 497 under the Securities Act, has taken all required action under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(xii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and each of the Fund Agreements have been duly executed and delivered by the Fund and each constitutes the valid and legally binding agreement of the Fund, enforceable against the Fund in accordance with its 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 Fund'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.
(xiii) Except as disclosed in or contemplated by the Registration Statement or the Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus, the Fund has not incurred any material liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, and there has not been any change in the capital stock (other than in connection with the transactions contemplated hereunder or pursuant to the Fund's dividend reinvestment plan) or any change or any development involving or which should reasonably be expected to involve a Fund Material Adverse Effect or its capitalization, or the incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to occur of (A) the applicable Settlement Date and (B) completion of the distribution of the Placement Shares contemplated by the applicable Placement Notice, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus, any "sales material" (as defined in Section 6(a)(xx) below) or other materials permitted by the Securities Act or the Investment Company Act.
(xv) The Fund 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 Fund 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 Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Fund.
(xvi) The Fund maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with the Fund's Board of Trustees' general or specific authorization and with the investment policies and restrictions of the Fund and the applicable requirements of the Securities Act, the Investment Company Act and the Internal Revenue Code of 1986, as amended, (the "CODE"); (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value and fee accruals, to maintain accountability for assets and to maintain compliance with the books and records requirements under the Investment Company Act; (C) access to assets is permitted only in accordance with the Board of Trustees' general or specific authorization; and (D) the recorded amount of assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund maintains "disclosure controls and procedures" (as such term is defined in Rule 30a-3 under the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in the Prospectus) does not require it to be the owner, possessor or licensee of any patents, patent licenses, trademarks, service marks or trade names which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in or which will constitute stabilization or manipulation of the price of the Placement Shares, or of any securities issued by the Fund, to facilitate the sale or resale of the Placement Shares in violation of federal securities laws and no such action has been, or will be, taken by any affiliates of the Fund.
(xix) The Fund is duly registered under the Investment Company Act as a closed-end, non-diversified management investment company and the notification of registration of the Fund as an investment company under the Investment Company Act on Form N-8A has been duly filed with the Commission, is effective, and, at the time of filing th
Appears in 1 contract
Sources: Sales Agreement (First Trust MLP & Energy Income Fund)
Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser, Adviser jointly and severally, represent and warrant to and agree with J▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(j7(j) below), as of each Settlement Date ) and as of each Applicable Time (as defined in Section 7(a)(2)) as follows:Section
(1i) The Fund meets the requirements for the use of Form N-2 under the Securities Act and the Investment Company Act. The Registration Statement has been declared effective by the Commission under the Securities Act. Each Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto or filed pursuant to Rule 497 of the Securities Act complied when so filed in all material respects with the provisions of the Securities Act and the Investment Company Act. The Commission has not issued any order preventing or suspending the use of the Prospectus or the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or, to the knowledge of the Fund, are contemplated by the Commission.
(2ii) (A) The Registration Statement in the form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective and as of the date hereof, hereof and as of the time of each sale of Placement Shares pursuant to this Agreement (the “Applicable Time”"APPLICABLE TIME") and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under Rule 497 of the Securities Act and any amendment or supplement thereto when filed with the Commission and as of the date hereof, as of each Applicable Time and as of each Settlement Date, complied or will comply in all material respects with the provisions of the Securities Act and the Investment Company Act, and each of the Registration Statement, as amended as of any such time, Statement and the Prospectus did not or will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or any and the Prospectus Supplement or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to J▇▇▇▇▇ furnished to the Fund or the Adviser in writing by or on behalf of J▇▇▇▇▇ expressly for use therein.
(iii) All the outstanding shares of capital stock of the Fund have been duly authorized and validly issued, are fully paid and (except as described in the Prospectus under "Certain Provisions in the Declaration of Trust and By-Laws") nonassessable and are free of any preemptive or similar rights and have been offered and sold by the Fund in compliance with all applicable federal and state securities laws. No shares of capital stock, other than common shares of beneficial interest of the Fund, are issued or outstanding and the capitalization of the Fund conforms in all material respects to the description thereof in the Registration Statement and the Prospectus. The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued, delivered against payment therefore in accordance with this Agreement, will be validly issued and fully paid and nonassessable obligations of the Fund; and the Placement Shares will conform in all material respects to the description thereof in the Registration Statement and the Prospectus.
(iv) The Fund has been duly formed and is validly existing in good standing as a business trust under the laws of The Commonwealth of Massachusetts, with full 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 to enter into and perform its obligations under this Agreement and the Fund Agreements. The Fund 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 the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify, either alone or in the aggregate, does not have or would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), general affairs, business, properties, business prospects, net assets or results of operations of the Fund, whether or not occurring in the ordinary course of business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(v) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened against the Fund or to which the Fund or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required or that could reasonably be expected to result in a Fund Material Adverse Effect, or that may have a material, adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. All descriptions in the Registration Statement and the Prospectus of any Fund documents are accurate in all material respects. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Securities Act or Investment Company Act.
(vi) The Fund is not in violation of its Declaration of Trust ("DECLARATION OF TRUST"), bylaws or other organizational documents or any law, ordinance, administrative or governmental rule or regulation applicable to the Fund or of any decree of the Commission, the Financial Industry Regulatory Authority ("FINRA"), any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any other agency or any body or official having jurisdiction over the Fund or in breach or default in the performance of any of the Fund Agreements or any other obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound, except for such violation or such breach or default that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect.
(vii) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or order of or registration or filing with the Commission, FINRA, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official having jurisdiction over the Fund (except such as have been already obtained under the Securities Act, the Investment Company Act, the rules and regulations of FINRA and the NYSE or compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement) or conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust, bylaws, or other organizational documents of the Fund or (B) (1) conflicts or will conflict with or constitutes or will constitute a breach of or a default under any of the Fund Agreements or any other agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (2) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon (collectively, a "LIEN") any property or assets of the Fund 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 Fund is subject, except for such conflict, breach, default, violation or lien that, either alone or in the aggregate, does not have or would not reasonably be expected to have a Fund Material Adverse Effect or a material adverse effect on the ability of the Fund to perform its obligations under this Agreement or any of the Fund Agreements. The Fund is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
(viii) Since the date as of which information is given in the Registration Statement and the Prospectus, 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 of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Fund other than those in the ordinary course of its business as described in the Prospectus and (C) there has been no dividend or distribution of any kind declared, paid or made by the Fund on any class of its common stock, except for regular dividends consistent with past practice.
(ix) The Fund's accountants, Deloitte & Touche LLP, who have audited the financial statements included in, and whose report appears in, the Registration Statement and the Prospectus (and any amendment or supplement to either of them), are an independent public accounting firm as required by the Securities Act and Investment Company Act.
(x) The financial statements of the Fund, together with related schedules and notes, included or incorporated by reference in the Registration Statement or the Prospectus present fairly the financial position of the Fund on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as disclosed therein and comply with all applicable accounting requirements under the Securities Act and the Investment Company Act; and the other financial and statistical information and data included in the Registration Statement or the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(xi) The Fund, subject to the filing of the Prospectus under Rule 497 under the Securities Act, has taken all required action under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(xii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and each of the Fund Agreements have been duly executed and delivered by the Fund and each constitutes the valid and legally binding agreement of the Fund, enforceable against the Fund in accordance with its 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 Fund'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.
(xiii) Except as disclosed in or contemplated by the Registration Statement or the Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus, the Fund has not incurred any material liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, and there has not been any change in the capital stock (other than in connection with the transactions contemplated hereunder or pursuant to the Fund's dividend reinvestment plan) or any change or any development involving or which should reasonably be expected to involve a Fund Material Adverse Effect or its capitalization, or the incurrence of any debt by, the Fund.
(xiv) The Fund has not distributed and, prior to the later to occur of (A) the applicable Settlement Date and (B) completion of the distribution of the Placement Shares contemplated by the applicable Placement Notice, will not distribute any offering material in connection with the offering and sale of the Placement Shares other than the Registration Statement, the Prospectus, any "sales material" (as defined in Section 6(a)(xx) below) or other materials permitted by the Securities Act or the Investment Company Act.
(xv) The Fund 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 Fund 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 Fund under any such permit, subject in each case to such qualification as may be set forth in the Prospectus (and any amendment or supplement thereto); and, except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Fund.
(xvi) The Fund maintains and will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with the Fund's Board of Trustees' general or specific authorization and with the investment policies and restrictions of the Fund and the applicable requirements of the Securities Act, the Investment Company Act and the Internal Revenue Code of 1986, as amended, (the "CODE"); (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value and fee accruals, to maintain accountability for assets and to maintain compliance with the books and records requirements under the Investment Company Act; (C) access to assets is permitted only in accordance with the Board of Trustees' general or specific authorization; and (D) the recorded amount of assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund maintains "disclosure controls and procedures" (as such term is defined in Rule 30a-3 under the Investment Company Act).
(xvii) The conduct by the Fund of its business (as described in the Prospectus) does not require it to be the owner, possessor or licensee of any patents, patent licenses, trademarks, service marks or trade names which it does not own, possess or license or sub-license.
(xviii) Except as stated in this Agreement and in the Prospectus, the Fund has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in or which will constitute stabilization or manipulation of the price of the Placement Shares, or of any securities issued by the Fund, to facilitate the sale or resale of the Placement Shares in violation of federal securities laws and no such action has been, or will be, taken by any affiliates of the Fund.
(xix) The Fund is duly registered under the Investment Company Act as a closed-end, non-diversified management investment company and the notification of registration of the Fund as an investment company under the Investment Company Act on Form N-8A has been duly filed with the Commission, is effective, and, at the time of filing thereof and at all times through the date hereof conformed in all material respects with all applicable provisio
Appears in 1 contract
Sources: Sales Agreement (First Trust Specialty Finance & Financial Opportunities Fund)