Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time: (1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein. (3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein. (4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein. (5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries. (6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus). (7) The Fund is duly registered under the Investment Company Act as a closed-end 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. (8) The Fund has full 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 thereunder 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). (9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect. (10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect. (11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement. (12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective. (13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act. (14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund. (15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect. (16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus. (17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law. (18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code. (19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect. (20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect. (21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees. (22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties. (24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 t
Appears in 5 contracts
Sources: Sales Agreement (Pimco High Income Fund), Sales Agreement (PIMCO Income Strategy Fund II), Sales Agreement (Pimco Corporate & Income Strategy Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1 under the Investment Company Act) by the Fund, including policies and procedures that provide for the oversight of compliance by each investment adviser,
Appears in 4 contracts
Sources: Sales Agreement (PIMCO Income Strategy Fund II), Sales Agreement (Pimco Income Strategy Fund), Sales Agreement (PIMCO Income Opportunity Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is has been declared effective by the Commission under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopted and implemented written po
Appears in 2 contracts
Sources: Sales Agreement (Pimco Corporate & Income Opportunity Fund), Sales Agreement (PIMCO Income Strategy Fund II)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i7(j) below) and as of the time of each sale of Placement Shares pursuant to the Agreement (the “Applicable Time”) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 of under 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”) Time and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under pursuant to Rule 424 of under 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Each Incorporated DocumentsDocument heretofore filed, as of their respective filing dates when it was filed with the Commission, as of the date hereof, as of each Applicable Time and as of each Settlement Date, Commission complied or will comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable, and did not any further Incorporated Documents so filed and incorporated after the date of this Agreement will, when they are filed, comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable; no such Incorporated Document, at the time it was filed or hereafter is filed with the Commission contained or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Each Additional Disclosure Item (as defined in Section 7(a)(246(a)(22) hereof), does not or and will not conflict conflict, in all material respects, with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such timeas of each Applicable Time and each Settlement Date, did not or and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(7) The Fund’s registration statement on Form 8-A under the Exchange Act has become effective.
(8) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 424, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(9) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Charter and Bylaws,” “Certain United States Federal Income Tax Considerations” and “Investment Policies and Techniques,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(10) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(11) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund12) Other than as provided in Section 6(a)(8) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(13) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1114) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1415) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1516) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except The Fund owns or leases all such properties as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant are necessary to the Fund’s Dividend Reinvestment Plan, in each case, so long conduct of its operations as such actions are in compliance with all applicable lawpresently conducted.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in violation or default thereunderof any provision of its charter or bylaws or (i) 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties, except in the case of (i) and (ii) above, where such a violation or default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not reasonably be expected to have a Fund Material Adverse Effect.
(2119) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(20) PricewaterhouseCoopers LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act.
(21) The Fund has not distributed and, prior to the completion of the Fund or (B) an “affiliated person” distribution of the Placement Shares, 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 Additional Disclosure Item (as defined in below) or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21, including Reports (as defined herein), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without Without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it the Fund has not and, prior made and will not make any offer relating to the completion of the issuance and sale of the Placement Shares that would constitute a “free writing prospectus” as defined in accordance with Rule 405 under the Securities Act and which the parties agree, for the purposes of this Agreement, will not distribute includes (1) any offering material “advertisement” as defined in Rule 482 under the Securities Act and treated by the Fund as subject to Rule 482 under the Securities Act and (2) any sales literature, materials or information provided to investors by, or with the approval of, the Fund in connection with the sale or marketing of the offering and sale of the Placement Shares other tShares, including any road show or investor presentations (including slides and scripts relating thereto) made to investors by or on behalf of the Fund (the materials and information referred to in this Section 6(a)(22) are herein referred to as “Additional Disclosure Items”). All Additional Disclosure Items complied and will comply in all material respects with (i) the applicable requirements of the Securities Act and the Investment Company Act, including without limitation all applicable filing (where required), legending and record keeping requirements, and (ii) the rules and interpretations of FINRA.
(23) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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
Appears in 2 contracts
Sources: Sales Agreement (Western Asset High Income Fund Ii Inc.), Sales Agreement (Western Asset Mortgage Opportunity Fund Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i8.(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(247.(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PDILS I, LLC, a Delaware limited liability company.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217.(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 t
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PCILS I LLC, a Delaware limited liability company.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”), the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(1311) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
Appears in 1 contract
Sources: Sales Agreement (PIMCO Dynamic Credit & Mortgage Income Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i8.(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is has been declared effective by the Commission under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopted and implemented written p
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, hereof and as of each Representation Date (as defined in Section 8(i7(j) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of 497 under 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 pursuant to Rule 497 under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(5) 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”) has become effective.
(6) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(7) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Use of Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Articles of Incorporation and By–Laws,” “Certain United States Federal Income Tax Considerations,” “Investment Policies and Techniques,” “Investment Manager” and “Portfolio Managers,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(8) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(9) The Fund is duly registered under the Investment Company Act as a closed-end –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.
(8) The Fund has full 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 Fund10) Other than as provided in Section 6(a)(6) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(11) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1112) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1514) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except The Fund owns or leases all such properties as stated are necessary to the conduct of its operations as presently conducted.
(16) The Fund is not in violation or contemplated in this Agreementdefault of any provision of its charter or bylaws or (i) the terms of any indenture, the Registration Statement and the Prospectuscontract, 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund has or any of its properties, except in the case of (i) and (ii) above, where such a violation or default would not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2117) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(18) KPMG LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2219) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not distributed and, prior to the completion of the issuance and sale distribution of the Placement Shares in accordance with this AgreementShares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other tthan the Registration Statement, the Prospectus or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act, including Reports (as defined herein).
(20) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under 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; the Fund has not been refused any insurance coverage sought or applied for; 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 coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(21) The Fund possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business except to the extent that the failure to have any such permit would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto); the Fund 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 aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(22) The Fund maintains and will maintain a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Fund and the applicable requirements of the Investment Company Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value, to maintain accountability for assets and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “internal control over financial reporting” (as such term is defined in Rule 30a–3 under the Investment Company Act) and such internal control over financial reporting is and shall be effective as required by the Investment Company Act. The Fund is not aware of any material weakness in its internal control over financial reporting.
(23) The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a–3 under the Investment Company Act); such disclosure controls and procedures are designed as requi
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PDILS I LLC, a Delaware limited liability company.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopte
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PDILS I, LLC and PCILS I LLC, each a Delaware limited liability company.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 tofferin
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i7(j) below) and as of the time of each sale of Placement Shares pursuant to the Agreement (the “Applicable Time”) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of under 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”) Time and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under pursuant to Rule 424 of under 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Each Incorporated DocumentsDocument heretofore filed, as of their respective filing dates when it was filed with the Commission, as of the date hereof, as of each Applicable Time and as of each Settlement Date, Commission complied or will comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable, and did not any further Incorporated Documents so filed and incorporated after the date of this Agreement will, when they are filed, comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable; no such Incorporated Document, at the time it was filed or hereafter is filed with the Commission contained or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Each Additional Disclosure Item (as defined in Section 7(a)(246(a)(22) hereof), does not or and will not conflict conflict, in all material respects, with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such timeas of each Applicable Time and each Settlement Date, did not or and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(7) The Fund’s registration statement on Form 8-A under the Exchange Act has become effective.
(8) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 424, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(9) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Charter and Bylaws,” “Certain United States Federal Income Tax Considerations” and “Investment Policies and Techniques,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(10) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(11) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund12) Other than as provided in Section 6(a)(8) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(13) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1114) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1415) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1516) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except The Fund owns or leases all such properties as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant are necessary to the Fund’s Dividend Reinvestment Plan, in each case, so long conduct of its operations as such actions are in compliance with all applicable lawpresently conducted.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in violation or default thereunderof any provision of its charter or bylaws or (i) 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties, except in the case of (i) and (ii) above, where such a violation or default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not reasonably be expected to have a Fund Material Adverse Effect.
(2119) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(20) PricewaterhouseCoopers LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act.
(21) The Fund has not distributed and, prior to the completion of the Fund or (B) an “affiliated person” distribution of the Placement Shares, 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 Additional Disclosure Item (as defined in below) or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21, including Reports (as defined herein), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without Without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it the Fund has not and, prior made and will not make any offer relating to the completion of the issuance and sale of the Placement Shares that would constitute a “free writing prospectus” as defined in accordance with Rule 405 under the Securities Act and which the parties agree, for the purposes of this Agreement, will not distribute includes (1) any offering material “advertisement” as defined in Rule 482 under the Securities Act and treated by the Fund as subject to Rule 482 under the Securities Act and (2) any sales literature, materials or information provided to investors by, or with the approval of, the Fund in connection with the sale or marketing of the offering and sale of the Placement Shares other tShares, including any road show or investor presentations (including slides and scripts relating thereto) made to investors by or on behalf of the Fund (the materials and information referred to in this Section 6(a)(22) are herein referred to as “Additional Disclosure Items”). All Additional Disclosure Items complied and will comply in all material respects with (i) the applicable requirements of the Securities Act and the Investment Company Act, including without limitation all applicable filing (where required), legending and record keeping requirements, and (ii) the rules and interpretations of FINRA.
(23) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under the Investment Company Act, are in full force and effect; the Fund is in compliance with the terms
Appears in 1 contract
Sources: Sales Agreement (Western Asset High Income Fund Ii Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇Jo▇▇▇ as ▇s of the date hereof, as of each Representation Date (as defined in Section 8(i7(j) below) and as of the time of each sale of Placement Shares pursuant to the Agreement (the “Applicable Time”) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of 497 under 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”) Time and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission pursuant to Rule 497 under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇Jo▇▇▇ furnished ▇urnished to the Fund or the Manager in writing by or on behalf of ▇▇Jo▇▇▇ ▇xpressly for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(5) 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”) has become effective.
(6) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(7) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Charter and Bylaws,” “Certain United States Federal Income Tax Considerations” and “Investment Policies and Techniques,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(8) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(9) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund10) Other than as provided in Section 6(a)(6) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(11) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1112) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1514) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except The Fund owns or leases all such properties as stated are necessary to the conduct of its operations as presently conducted.
(16) The Fund is not in violation or contemplated in this Agreementdefault of any provision of its charter or bylaws or (i) the terms of any indenture, the Registration Statement and the Prospectuscontract, 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund has or any of its properties, except in the case of (i) and (ii) above, where such a violation or default would not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2117) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(18) PricewaterhouseCoopers LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2219) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not distributed and, prior to the completion of the issuance and sale distribution of the Placement Shares in accordance with this AgreementShares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other tthan the Registration Statement, the Prospectus or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act, including Reports (as defined herein).
(20) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under 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; the Fund has not been refused any insurance coverage sought or applied for; 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 coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(21) The Fund possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business except to the extent that the failure to have any such permit would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto); the Fund 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 aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(22) The Fund maintains and will maintain a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Fund and the applicable requirements of the Investment Company Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value, to maintain accountability for assets and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “internal control over financial reporting” (as such term is defined in Rule 30a−3 under the Investment Company Act) and such internal control over financial reporting is and shall be effective as required by the Investment Company Act. The Fund is not aware of any material weakness in its internal control over financial reporting.
(23) The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a−3 under the Investment Company Act); such disclosure controls and procedures are designed as required by the Investment Com
Appears in 1 contract
Sources: Sales Agreement (Western Asset Mortgage Opportunity Fund Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PAXSLS I LLC, CLM 4355 LLC and RLM 4355 LLC, each a Delaware limited liability company and wholly- owned by the Fund.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 tth
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 tthan the Registration Statement, the Pr
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is has been declared effective by the Commission under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 thave
Appears in 1 contract
Sources: Sales Agreement (Pimco Corporate & Income Strategy Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PDOLS I, LLC, CLM 4365 LLC, and RLM 4365 LLC, each a Delaware limited liability company.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 tconnecti
Appears in 1 contract
Sources: Sales Agreement (PIMCO Dynamic Income Opportunities Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation Date. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(7) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(11) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(15) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(21) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not 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 tthan the Registration Statement, the Prospec
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, hereof and as of each Representation Date (as defined in Section 8(i7(j) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of 497 under 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 (B) the Prospectus and any amendment or supplement thereto when filed with the Commission pursuant to Rule 497 under the Securities Act 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(5) 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”) has become effective.
(6) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(7) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Use of Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Articles of Incorporation and By-Laws,” “Certain United States Federal Income Tax Considerations,” “Investment Policies and Techniques,” “Investment Manager” and “Portfolio Managers,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(8) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(9) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund10) Other than as provided in Section 6(a)(6) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(11) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1112) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the FundFund in all material respects.
(1514) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except The Fund owns or leases all such properties as stated are necessary to the conduct of its operations as presently conducted.
(16) The Fund is not in violation or contemplated in this Agreementdefault of any provision of (i) its charter or bylaws, (ii) the Registration Statement and the Prospectusterms 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) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund has or any of its properties, except in the case of (ii) and (iii) above, where such a violation or default would not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2117) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock other than in the normal course of its business.
(18) KPMG LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2219) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not distributed and, prior to the completion of the issuance and sale distribution of the Placement Shares in accordance with this AgreementShares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other tthan the Registration Statement, the Prospectus or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act, including Reports (as defined herein).
(20) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under 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; the Fund has not been refused any insurance coverage sought or applied for; 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 coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(21) The Fund possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business except to the extent that the failure to have any such permit would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto); the Fund 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 aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(22) The Fund maintains and will maintain a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Fund and the applicable requirements of the Investment Company Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value, to maintain accountability for assets and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “internal control over financial reporting” (as such term is defined in Rule 30a–3 under the Investment Company Act) and such internal control over financial reporting is and shall be effective as required by the Investment Company Act. The Fund is not aware of any material weakness in its internal control over financial reporting.
(23) The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a–3 under the Investment Company Act); such disclosure controls and procedures are designed as required by
Appears in 1 contract
Sources: Sales Agreement (ClearBridge Energy MLP Total Return Fund Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateDate and as of each filing date of a Report. 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 424 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Fourth Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities Act, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”), the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(1311) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fun
Appears in 1 contract
Sources: Sales Agreement (Pimco Corporate & Income Strategy Fund)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, hereof and as of each Representation Date (as defined in Section 8(i7(j) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of 497 under 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 (B) the Prospectus and any amendment or supplement thereto when filed with the Commission pursuant to Rule 497 under the Securities Act 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 when filed with the Commission under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(5) 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”) has become effective.
(6) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(7) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Use of Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Articles of Incorporation and By-Laws,” “Certain United States Federal Income Tax Considerations,” “Investment Policies and Techniques,” “Investment Manager” and “Portfolio Managers,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(8) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(9) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund10) Other than as provided in Section 6(a)(6) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(11) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1112) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1514) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except The Fund owns or leases all such properties as stated are necessary to the conduct of its operations as presently conducted.
(16) The Fund is not in violation or contemplated in this Agreementdefault of any provision of its charter or bylaws or (i) the terms of any indenture, the Registration Statement and the Prospectuscontract, 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund has or any of its properties, except in the case of (i) and (ii) above, where such a violation or default would not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2117) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock other than in the normal course of its business.
(18) KPMG LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2219) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not distributed and, prior to the completion of the issuance and sale distribution of the Placement Shares in accordance with this AgreementShares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other tthan the Registration Statement, the Prospectus or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act, including Reports (as defined herein).
(20) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under 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; the Fund has not been refused any insurance coverage sought or applied for; 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 coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(21) The Fund possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business except to the extent that the failure to have any such permit would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto); the Fund 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 aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(22) The Fund maintains and will maintain a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Fund and the applicable requirements of the Investment Company Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value, to maintain accountability for assets and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “internal control over financial reporting” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such internal control over financial reporting is and shall be effective as required by the Investment Company Act. The Fund is not aware of any material weakness in its internal control over financial reporting.
(23) The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act); such disclosure controls and procedures are designed as required by the Investment Company Act.
(24
Appears in 1 contract
Sources: Sales Agreement (ClearBridge Energy MLP Opportunity Fund Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiariessubsidiaries other than PDILS I LLC, a Delaware limited liability company.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopted and implemented written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws (as that term is defined in Rule 38a-1 under the Investment Company Act) by the Fund, including policies and procedures that provid
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i) below), and as of each filing date of a Report (as defined in Section 8(g) below) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is has been declared effective by the Commission under the Securities Act as of each Representation DateDate and as of each filings date of a Report. 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 424 497 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 when filed with the Commission under Rule 424 497 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed and is validly existing as an unincorporated voluntary association under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”), with full power and authority to conduct all the activities conducted by it, to own or lease all assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus, and the Fund is duly licensed and qualified to do business and in good standing in each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business prospects, properties, net assets or results of operations of the Fund (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Prospectus; the shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus; all outstanding shares of beneficial interest of the Fund 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 therefor in accordance with this Agreement, will be fully paid and nonassessable by the Fund; and 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 Exchange. The issuance of the Placement Shares will not be subject to any preemptive or similar rights (except as described or referred to in the Registration Statement or the Prospectus).
(75) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) 6) The Fund has full 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 thereunder 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).
(97) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) ), or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Fund of its obligations under this Agreement and the Fund Agreements, except such as have been obtained and as may be required by the Securities ActActs, the Investment Company Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Act, the applicable rules and regulations of FINRA, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Placement Shares, and except where the failure to obtain such consent, approval, authorization, order, permit or qualification would not have a Fund Material Adverse Effect.
(10) 8) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(119) No security holder of the Fund has any right to the registration of any securities of the Fund because of the filing of the Registration Statement.
(1210) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the “Exchange Act”), is effective.
(1311) PricewaterhouseCoopers LLPLLP (“PwC”), whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1412) The financial statements of the Fund included in the Registration Statement and the Prospectus, together with the related schedules (if any) and notes, present fairly in all material respects the financial position of the Fund at the dates indicated and the results of operations and cash flows of the Fund for the periods specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply as to form 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 and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1513) There has not occurred any material adverse change in the condition, financial or otherwise, or in the earnings, business, prospects or operations of the Fund (other than as a result of a change in the financial markets generally) since the date as of which information is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(1614) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(1816) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(1917) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(2018) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2119) Except as disclosed in the Registration Statement and the Prospectus, no trustee of the Fund is (A) an “interested person” (as defined in the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(217(a)(19), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2220) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(2321) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(2422) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it 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 tthan the Registration Statement, the Prospectus or other sales materials permitted by the Securities Act or the Investment Company Act. All sales material, if any, authorized by the Fund for use in the offering of the Placement Shares will comply in all material respects with the requirements of the Securities Act, the Investment Company Act and the rules and regulations of FINRA. No sales material will contain an untrue statement or 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.
(23) The Fund maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund is not aware of any material weakness in its internal control over financial reporting. The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment Company Act) and such disclosure controls and procedures are effective as required by the Investment Company Act.
(24) The Fund has adopted and implemented written p
Appears in 1 contract
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i7(j) below) and as of the time of each sale of Placement Shares pursuant to the Agreement (the “Applicable Time”) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of 497 under 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”) Time and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission pursuant to Rule 497 under Rule 424 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Incorporated Documents, as of their respective filing dates with the Commission, 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 requirements of the Exchange Act and the Investment Company Act, as applicable, and did not or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Additional Disclosure Item (as defined in Section 7(a)(24) hereof), does not or will not conflict with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such time, did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(64) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(5) 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”) has become effective.
(6) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 497, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(7) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Charter and Bylaws,” “Certain United States Federal Income Tax Considerations” and “Investment Policies and Techniques,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(8) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(9) The Fund is duly registered under the Investment Company Act as a closed-end 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.
(8) The Fund has full 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 Fund10) Other than as provided in Section 6(a)(6) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(11) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1112) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(14) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1514) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(1715) Except The Fund owns or leases all such properties as stated are necessary to the conduct of its operations as presently conducted.
(16) The Fund is not in violation or contemplated in this Agreementdefault of any provision of its charter or bylaws or (i) the terms of any indenture, the Registration Statement and the Prospectuscontract, 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund has or any of its properties, except in the case of (i) and (ii) above, where such a violation or default would not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant to the Fund’s Dividend Reinvestment Plan, in each case, so long as such actions are in compliance with all applicable law.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in default thereunder, except where such a default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not have a Fund Material Adverse Effect.
(2117) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(18) PricewaterhouseCoopers LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act) of the Fund or (B) an “affiliated person” (as defined in the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(2219) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it has not distributed and, prior to the completion of the issuance and sale distribution of the Placement Shares in accordance with this AgreementShares, will not distribute any offering material in connection with the offering and sale of the Placement Shares other tthan the Registration Statement, the Prospectus or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act, including Reports (as defined herein).
(20) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under 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; the Fund has not been refused any insurance coverage sought or applied for; 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 coverage and fidelity bond from similar insurers as may be necessary to continue its business at a cost that would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto).
(21) The Fund possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business except to the extent that the failure to have any such permit would not have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus (exclusive of any supplement thereto); the Fund 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 aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(22) The Fund maintains and will maintain a system of internal accounting controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization and with the investment objectives, policies and restrictions of the Fund and the applicable requirements of the Investment Company Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles, to calculate net asset value, to maintain accountability for assets and to maintain material compliance with the books and records requirements under the Investment Company Act; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Fund employs “internal control over financial reporting” (as such term is defined in Rule 30a–3 under the Investment Company Act) and such internal control over financial reporting is and shall be effective as required by the Investment Company Act. The Fund is not aware of any material weakness in its internal control over financial reporting.
(23) The Fund maintains “disclosure controls and procedures” (as such term is defined in Rule 30a–3 under the Investment Company Act); such disclosure controls and procedures are designed as required by the Investment Com
Appears in 1 contract
Sources: Sales Agreement (Western Asset Mortgage Opportunity Fund Inc.)
Representations and Warranties by the Fund and the Manager. The Fund and the Manager, jointly and severally, represent and warrant to and agree with ▇▇▇▇▇ as of the date hereof, as of each Representation Date (as defined in Section 8(i7(j) below) and as of the time of each sale of Placement Shares pursuant to the Agreement (the “Applicable Time”) as follows, unless such representation, warranty or agreement specifies a different date or time:
(1) The Original Registration Statement has been declared effective by the Commission under the Securities Act as of the date hereof. The Registration Statement is effective under the Securities Act as of each Representation DateAct. 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 424 of under 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”) Time and as of each Settlement Date, and (B) the Prospectus and any amendment or supplement thereto when filed with the Commission under pursuant to Rule 424 of under 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 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 and the Prospectus made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ expressly for use therein.
(3) The Each Incorporated DocumentsDocument heretofore filed, as of their respective filing dates when it was filed with the Commission, as of the date hereof, as of each Applicable Time and as of each Settlement Date, Commission complied or will comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable, and did not any further Incorporated Documents so filed and incorporated after the date of this Agreement will, when they are filed, comply in all material respects with the requirements of the Exchange Act and the Investment Company Act, as applicable; no such Incorporated Document, at the time it was filed or hereafter is filed with the Commission contained or 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 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 Incorporated Documents made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(4) As of each Applicable Time and each Settlement Date, each Each Additional Disclosure Item (as defined in Section 7(a)(246(a)(22) hereof), does not or and will not conflict conflict, in all material respects, with the information contained in the Registration Statement or the Prospectus and each such Additional Disclosure Item, as supplemented by and taken together with the Prospectus at such timeas of each Applicable Time and each Settlement Date, did not or and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the 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 any Additional Disclosure Item made in reliance upon and in conformity with information relating to ▇▇▇▇▇ furnished to the Fund or the Manager in writing by or on behalf of ▇▇▇▇▇ for use therein.
(5) The Fund has been duly formed organized and is validly existing in good standing as an unincorporated voluntary association a corporation under the laws of The Commonwealth of Massachusetts (commonly known as a “Massachusetts business trust”)Maryland, with full corporate power and authority to conduct all the activities conducted by itown, to own or lease all assets owned or leased by it and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, the Prospectus and the Fund is duly licensed and qualified to do business and is in good standing in under the laws of each jurisdiction in which its ownership or leasing of property or its conducting of business requires such qualification, qualification except where the failure to be so qualified register or be in good standing would qualify does not have a material adverse effect on change in the condition (financial or otherotherwise), business prospects, propertiesearnings, net assets business or results of operations properties of the Fund Fund, whether or not arising from transactions in the ordinary course of business (a “Fund Material Adverse Effect”), and the Fund owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations, whether foreign or domestic, necessary to carry on its business as contemplated in the Prospectus to the extent that failure to hold such governmental license, permit, consent order, approval or other authorization would have a Fund Material Adverse Effect. The Fund has no subsidiaries.
(6) The Fund’s authorized equity capitalization is as set forth in the Registration Statement and the Prospectus; the shares of beneficial interest capital stock of the Fund conform conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; all outstanding shares of beneficial interest of the Fund Fund’s common stock have been duly and validly authorized and issued and are fully paid and nonassessable by the Fundnonassessable; the Placement Shares have been duly and validly authorized, and, when issued and delivered against payment therefor in accordance with pursuant to this Agreement, will be validly issued and fully paid and nonassessable by the Fundnonassessable; and 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 Exchange. The issuance of ; the certificates, if any, for the Placement Shares will are in valid and sufficient form; the holders of outstanding shares of the Fund’s common stock are not be subject entitled to any preemptive or similar other rights (to subscribe for the Placement Shares; and, except as described or referred to set forth in the Registration Statement or 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.
(7) The Fund’s registration statement on Form 8–A under the Exchange Act has become effective.
(8) The Fund, subject to the Registration Statement having been declared effective and the filing of the Prospectus under Rule 424, has taken all required action under the Securities Act, the Investment Company Act and the Exchange Act to make the public offering and consummate the sale of the Placement Shares as contemplated by this Agreement.
(9) There are no agreements, contracts, indentures, leases, permits 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; the statements in the Registration Statement and the Prospectus on the inside front cover and under the headings “Prospectus Summary,” “The Fund’s Investments,” “Leverage,” “Risks,” “Management of the Fund,” “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Charter and Bylaws,” “Certain United States Federal Income Tax Considerations” and “Investment Policies and Techniques,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(10) The Fund has full corporate power and authority to enter into this Agreement and the Fund Agreements; the execution and delivery of, and the performance by the Fund of its obligations under, this Agreement and the Fund Agreements have been duly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund.
(11) The Fund is duly registered under the Investment Company Act as a closed-end –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.
(8) The Fund has full 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 Fund12) Other than as provided in Section 6(a)(8) above, 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 thereunder 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).
(9) None of (i) the execution and delivery by the Fund of this Agreement and the Fund Agreements, (ii) the issue and sale by the Fund of the Placement Shares as contemplated by this Agreement and (iii) the performance by the Fund of its obligations under any of the Fund Agreements or consummation by the Fund of the other transactions contemplated by the Fund Agreements conflicts with or will conflict with, or results or will result in a breach of, (a) the Amended and Restated Agreement and Declaration of Trust or the Amended and Restated Bylaws of the Fund, each as amended or restated from time to time (the “Declaration of Trust” and the “Bylaws,” respectively) or (b) any agreement or instrument to which the Fund is a party or by which the Fund is bound, or (c) any law, rule or regulation applicable to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund, whether foreign or domestic, except in the case of (b) and (c) above where such conflict or breach would not have a Fund Material Adverse Effect. No no consent, approval, authorization, filing with or order or permit of, or qualification with, of any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign governmental agency or domestic, body is required for in connection with the performance by the Fund of its obligations under this Agreement and transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained and as may be required by under the Securities Act, the Investment Company Exchange Act, the Investment Advisers Act of 1940, as amended, and the rules and regulations thereunder (collectively, the “Advisers Act”), or the Exchange Investment Company Act, the applicable rules and regulations of FINRAFINRA and the Exchange, or by and such as may be required under the securities or Blue Sky blue sky laws of the various states and foreign jurisdictions any jurisdiction in connection with the offer purchase and distribution of the Placement Shares in the manner contemplated herein and in the Registration Statement and the Prospectus.
(13) Neither the issuance and sale of the Placement Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the charter and except bylaws of the Fund, (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 the Fund is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties except, in the case of (ii) and (iii) above, where the failure to obtain such consenta conflict, approvalbreach, authorization, order, permit violation or qualification imposition would not reasonably be expected to have a Fund Material Adverse Effect.
(10) The Fund is not currently in material breach of, or in default under, any written agreement or instrument to which it is a party or by which it or its property is bound or affected, except where such breach or default does not have a Fund Material Adverse Effect.
(1114) No security holder holders of securities of the Fund has any right have rights to the registration of any such securities of the Fund because of the filing of under the Registration Statement.
(12) The Shares are duly authorized for listing, subject to official notice of issuance, on the Exchange and the Fund’s Registration Statement on Form 8-A, under the Exchange Act, is effective.
(13) PricewaterhouseCoopers LLP, whose report appears in the Registration Statement, has confirmed to the Fund’s Board of Trustees that they are independent public accountants with respect to the Fund as required by the Securities Act and the Investment Company Act.
(1415) The financial statements of the Fund statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the ProspectusProspectus present fairly, together with the related schedules (if any) and notes, present fairly in all material respects respects, the financial position of the Fund at the dates indicated and the condition, results of operations and cash flows of the Fund as of the dates and for the periods specified; indicated, comply as to form with the applicable accounting requirements of the Securities Act and all such financial statements the Investment Company Act and have been prepared in conformity with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply (except as to form with all applicable accounting requirements under the Securities Act and the Investment Company Act, otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Fund.
(1516) There has not occurred No action, suit or proceeding by or before any material adverse change in the conditioncourt or governmental agency, financial authority or otherwise, body or in the earnings, business, prospects or operations of any arbitrator involving the Fund (other than as a result of a change in the financial markets generally) since the date as of which information or its property is given in the Registration Statement and the Prospectus, and 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 or as described in the Prospectus, in each case except to the extent that that any such change or transaction (x) would not have a material adverse effect on the Fund’s ability to consummate the transactions herein contemplated or to perform its obligations under this Agreement or (y) would not have a Fund Material Adverse Effect.
(16) There are no legal or governmental proceedings pending or, to the knowledge of the Fund, threatened to which the Fund is a party or to which any of the properties of the Fund is subject that (i) would reasonably be expected to have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would reasonably be expected to have a Fund Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Prospectus.
(17) Except The Fund owns or leases all such properties as stated or contemplated in this Agreement, the Registration Statement and the Prospectus, the Fund has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Fund to facilitate the sale or resale of the Placement Shares in violation of the Exchange Act, and the Fund is not aware of any such action taken or to be taken by any affiliates of the Fund (for these purposes, not including ▇▇▇▇▇) other than tender offers or share repurchases effected following the date on which the distribution of the Placement Shares is completed, and the issuance or purchase of shares pursuant are necessary to the Fund’s Dividend Reinvestment Plan, in each case, so long conduct of its operations as such actions are in compliance with all applicable lawpresently conducted.
(18) The Fund intends to direct the investment of the proceeds of the offering of the Placement Shares in such a manner as to maintain its status as a regulated investment company under the requirements of Subchapter M of the Code.
(19) The Declaration of Trust and the Bylaws and the Fund Agreements comply in all material respects with all applicable provisions of the Investment Company Act and the Advisers Act, and all approvals of such documents, if any, required under the Investment Company Act by the Fund’s Board of Trustees have been obtained and are in full force and effect.
(20) The Fund Agreements are in full force and effect and the Fund is not in violation or default thereunderof any provision of its charter or bylaws or (i) 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 (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties, except in the case of (i) and (ii) above, where such a violation or default (x) would not have a material adverse effect on the Fund’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (y) would not reasonably be expected to have a Fund Material Adverse Effect.
(2119) Except Since the date as disclosed of which information is given in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund (other than as a result of a change in the financial markets generally), whether or not arising from transactions 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 Registration Statement and 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 capital stock.
(20) PricewaterhouseCoopers LLP, who have audited the financial statements of the Fund and delivered their report with respect to the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, no trustee is an independent registered public accounting firm with respect to the Fund within the meaning of the Fund is (A) an “interested person” (as defined in Securities Act, the Investment Company Act.
(21) The Fund has not distributed and, prior to the completion of the Fund or (B) an “affiliated person” distribution of the Placement Shares, 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 Additional Disclosure Item (as defined in below) or other materials filed by the Fund with the Commission pursuant to the Securities Act and/or the Investment Company Act) of ▇▇▇▇▇. For purposes of this Section 7(a)(21, including Reports (as defined herein), the Fund and the Manager shall be entitled to rely on representations from such officers and trustees.
(22) The Fund has filed all tax returns required to be filed or has requested extensions thereof (except in any case in which the failure to so file would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus), and the Fund is not in material default in the payment of any taxes which were shown as payable on said returns or any assessments with respect thereto, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not result in a Fund Material Adverse Effect, except as set forth in or contemplated in the Prospectus.
(23) The Fund carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and value of its properties.
(24) The Fund represents and agrees that, without Without the prior consent of ▇▇▇▇▇ (such consent not to be unreasonably withheld or delayed), (i) it the Fund has not and, prior made and will not make any offer relating to the completion of the issuance and sale of the Placement Shares that would constitute a “free writing prospectus” as defined in accordance with Rule 405 under the Securities Act and which the parties agree, for the purposes of this Agreement, will not distribute includes (1) any offering material “advertisement” as defined in Rule 482 under the Securities Act and treated by the Fund as subject to Rule 482 under the Securities Act and (2) any sales literature, materials or information provided to investors by, or with the approval of, the Fund in connection with the sale or marketing of the offering and sale of the Placement Shares other tShares, including any road show or investor presentations (including slides and scripts relating thereto) made to investors by or on behalf of the Fund (the materials and information referred to in this Section 6(a)(22) are herein referred to as “Additional Disclosure Items”). All Additional Disclosure Items complied and will comply in all material respects with (i) the applicable requirements of the Securities Act and the Investment Company Act, including without limitation all applicable filing (where required), legending and record keeping requirements, and (ii) the rules and interpretations of FINRA.
(23) The Fund is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged and which 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 under the Investment Company Act, are in full force and effect; the Fund is in compliance with the terms
Appears in 1 contract
Sources: Sales Agreement (Western Asset Mortgage Opportunity Fund Inc.)