Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that: (a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respects. (b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect. (c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject. (d) This Agreement has been duly authorized, executed and delivered by the Manager. (e) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package (the “Management Agreement”), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. (f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws. (g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect. (h) Except as disclosed in the Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement. (i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package. (j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. (k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated. (l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus. (m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager. (n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager. (o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (p) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the General Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is true and accurate in all material respects.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement, the Management Agreement and the Sub-Management Agreement and the transactions contemplated thereby, including the issuance hereby and sale of the Securities thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between Each of the Company Management Agreement and the Manager, as amended and described in the Disclosure Package (the “Sub-Management Agreement”), Agreement has been duly authorizedauthorized by the Manager and, as of the Closing Time, will be duly executed and delivered by the Manager and constitutes will constitute a valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Governmental Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the General Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Governmental Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(hg) Except as disclosed in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement, the Management Agreement or the Sub-Management Agreement.
(ih) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Registration Statement, the Prospectus and the General Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Registration Statement, the Prospectus and the General Disclosure Package plans to terminate his or her employment with the Manager or its affiliatesManager. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Registration Statement, the Prospectus and the General Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the Prospectus and the General Disclosure Package.
(ji) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares.
(kj) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(lk) The Manager is not prohibited by duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (“"Advisers Act”"), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
(ml) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(pm) The Company’s 's investment strategy described in the Registration Statement, the General Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Sources: Equity Underwriting Agreement (Javelin Mortgage Investment Corp.), Equity Underwriting Agreement (Javelin Mortgage Investment Corp.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is accurate in all material respects.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Time of Sale Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Time of Sale Disclosure Package (the “"Management Agreement”"), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“"Advisers Act”"), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s 's general or specific authorization and (B) access to the Company’s 's assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s 's investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters Underwriter that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is accurate in all material respects.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Time of Sale Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Time of Sale Disclosure Package (the “"Management Agreement”"), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“"Advisers Act”"), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s 's general or specific authorization and (B) access to the Company’s 's assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s 's investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative Underwriter or to counsel for the Underwriters Underwriter shall be deemed to be a representation and warranty by the Manager to each the Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters Underwriter and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the UnderwritersUnderwriter, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. 6.1 The Manager represents and warrants tohereby represents, warrants, covenants and agrees withto and with the Company, as of the Underwriters date hereof and on an ongoing basis, that:
(a) Any information regarding the Investment Advisory Agreement will not be amended without the prior written consent of the Company;
(b) information, provided in writing and orally, in respect of the Manager and/or its subsidiaries that is included affiliates, controlling persons, officers, directors, shareholders and employees as provided by the Manager to the Company during the cause of the Company’s due diligence on the Manager and for inclusion or in relation to the Registration Statement, the Prospectus or the Disclosure Package is derived from the Manager’s accounting or other applicable records and Offering Memorandum is accurate in all material respects., and does not omit any information relevant to appointment of the Manager or the management of the Portfolio;
(bc) The Manager has been it is an entity duly organized and is validly existing and in good standing under the laws of its state of organization, with the limited liability company power Cayman Islands and authority to own its properties and conduct its business as described in the Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation and is in good standing in all each other jurisdictions jurisdiction in which its ownership the nature or lease of property or the conduct of its business requires such qualification except where and in which the failure to be so qualified qualify would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale materially adversely affect its ability to conduct its business activities or those of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.Company;
(d) This it has full power and authority to perform its obligations under this Agreement;
(e) this Agreement has been duly and validly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package (the “Management Agreement”), has been duly authorized, executed and delivered by on behalf of the Manager and constitutes is a valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.;
(f) No consentnone of the execution and delivery of this Agreement, approval, authorizationthe incurring of the obligations set forth in this Agreement and the performance of such obligations will violate, or order ofconstitute a breach of or default under, or filing or registration with, any person (including any governmental agency or body the constitutive documents of the Manager or any court) relating agreement or instrument by which it is bound or any order or rule, law or regulation applicable to the Manager is required for of any court or any governmental body or administrative agency or self-regulatory authority having jurisdiction over the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.Manager;
(g) The Manager and its subsidiaries possessthere is not pending, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager noror, to the knowledge best of the Manager, any officers or other key persons of the Manager named in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actionsthreatened, suits any action, suit or proceedings (including any inquiries proceeding before or investigations by any court or other governmental agency or bodyself-regulatory authority to which the Manager is a party which might reasonably be expected to result in any material adverse change in the condition, domestic financial or foreign) are threatened otherwise, or contemplated.
(l) The regulatory status, of the Manager and the Manager is not currently subject to nor has there been threatened against the Manager any investigations by any competent regulatory authority;
(h) the Manager has complied and will continue to comply with all of its legal and regulatory obligations vis-à-vis all laws and regulations or court and governmental orders by which it is bound or to which it is subject;
(i) it will promptly, where not prohibited by law from doing so, notify the Investment Advisers Act Company of 1940any material changes in the representations, warranties, covenants and agreements;
(j) it is, and will continue to be, during its appointment hereunder and the continuance of this Agreement, the holder of all licences, permissions, authorisations and consents required under the laws of any jurisdiction where it is operating, as amended (“Advisers Act”)appropriate, or the rules and regulations thereunder, from performing to enable it to perform its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.duties pursuant to this Agreement; and
(mk) The Manager all information and each documentation it has provided to the Company, in contemplation of its subsidiaries this Agreement is insured by insurers with appropriately rated claims paying abilities against such losses and risks and accurate in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; material respects and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient not failed or omitted to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access make disclosure to the Company, of any matter that might reasonably be considered relevant to the Manager’s assets is permitted only in accordance with obligations hereunder or which would be reasonably likely to impact the internal polices, controls Company decision to appoint the Manager hereunder or which could reasonably be expected to impact the competence and procedures probity of the Manager.
(o) 6.2 The Manager further hereby represents, warrants, covenants, acknowledges and agrees to and with the Company, as of the date hereof and on an ongoing basis, that:
(a) this Agreement is in compliance with all applicable federal, state, local entered into by the Company for and foreign laws, rules, regulations, orders, decrees on behalf of the Segregated Portfolio;
(b) the Company is a segregated portfolio company established pursuant to the laws of the Cayman Islands and judgments, including those acknowledges and agrees that its rights under this Agreement are subject to the provisions of the laws of the Cayman Islands relating to transactions with affiliatessegregated portfolio companies;
(c) the Manager’s rights to claim or proceed against the Company, except where the failure to so comply could not reasonably be expected to havein respect of, individually or in relation to, any provision of this Agreement are confined, restricted and limited to the aggregateassets of the Segregated Portfolio, and, where a Material Adverse Effect.liability or obligation of the Company arises, from, in respect of, or in relation to, any provision of this Agreement, the Manager’s rights to pursue the Company in respect of such liability or obligation is confined, restricted and limited to the assets of the Segregated Portfolio;
(pd) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation no assets shall be transferred at any time from any general account of the Company’s business, which is not attributable to the Segregated Portfolio, to the Segregated Portfolio, in connection with satisfying any claim, liability or obligation arising from, or in relation to, any provision of this Agreement;
(e) no claims, liabilities or obligations arising from, or in relation to, any provision of this Agreement shall extend, and it shall have no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties recourse, to any asset of the Company set forth in Section 1 linked, allocated or held on behalf of, another segregated portfolio of the Company, other than the Segregated Portfolio, or to any other assets of the Company;
(f) if the assets of the Segregated Portfolio (following their realisation and application against any liabilities or obligations arising under any provision of this Agreement andAgreement) are insufficient to meet any liabilities or obligations arising under any provision of this Agreement, although such liabilities and obligations shall be limited to the assets of the Segregated Portfolio and the Manager acknowledges and agrees that the Manager is not passing upon entitled to take any further steps against the Company to recover any further sum and does not assume responsibility for no further debt shall be owed by the accuracy, completeness or fairness of such representation and warranties, nothing has come Company to the Manager's attention , and any such sum or debt which leads it to believe that remains outstanding will be extinguished in such representations and warranties are inaccurate in circumstances; and
(g) the terms of this Clause 6.2 applies notwithstanding any material respect. Any certificate signed by the Manager and delivered to the Representative other term or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth thereinprovision of this Agreement. The Manager further acknowledges and agrees that the Underwriters and, for purposes all terms and provisions of the opinions to this Agreement will be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such relianceconstrued in accordance with this Clause 6.2.
Appears in 1 contract
Sources: Investment Management Agreement (Prestige Wealth Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is accurate in all material respects.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Time of Sale Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package (the “Management Agreement”), Agreement has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by registered as an investment adviser pursuant to the Investment Advisers Act of 1940, as amended (“"Advisers Act”), or the rules ") and regulations thereunder, is not prohibited from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final ProspectusProspectus pursuant to the Advisers Act or any of the rules and regulations promulgated thereunder.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s 's general or specific authorization and (B) access to the Company’s 's assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s 's investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (Armour Residential REIT, Inc.)
Representations and Warranties of the Manager. The Manager hereby represents and warrants toto each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Underwriters Closing Date that:
(a) Any The information regarding the Manager and/or its subsidiaries that is included Manager, set forth under the heading “Prospectus Supplement – Our Manager” in the Registration Statement, the Time of Sale Information and the Prospectus or (collectively, the Disclosure Package “Manager Disclosures”) is derived from the Manager’s accounting or other applicable records true and is accurate correct in all material respects.
(b) The Manager has been duly organized formed and is validly existing and as a limited partnership in good standing under the laws of its state the State of organization, with Delaware and has the limited liability company partnership power and authority to own own, lease and operate its properties and to conduct its business as described in the Disclosure PackageRegistration Statement, the Time of Sale Information and the Prospectus and to enter into and perform its obligations under this Agreement and the Amended Management Agreement; and the Manager is duly qualified to do business as a foreign corporation limited partnership to transact business and is in good standing in all each other jurisdictions jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification is required, except where the failure to so qualify or to be so qualified in good standing would not have not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(ed) (i) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package (the “Amended Management Agreement”), Agreement has been duly authorized, executed and delivered by the Manager and constitutes a valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof enforceability may be limited by bankruptcy, insolvency, reorganization reorganization, moratorium or other similar laws affecting enforcement of creditors’ rights or generally and by general equitable principlesprinciples and the discretion of the court before which any proceeding may be brought.
(e) The limited partnership interests of the Manager are owned by NexPoint Advisors, L.P., free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(f) No consentThe Manager is not (i) in violation of its organizational documents or (ii) in default in the performance or observance of any obligation, approvalagreement, authorizationcovenant or condition contained in any agreements to which it is bound, or order ofwhich any of its property or assets is subject, except, in the case of (ii) above, for such defaults that would not, individually or filing or registration within the aggregate, any person (including any governmental agency or body or any court) relating reasonably be expected to result in a Material Adverse Effect; and the Manager is required for execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information and the Prospectus and compliance by this Agreement in connection the Manager with the offering, issuance its obligations hereunder and sale of the Securities, except such as thereunder have been obtainedduly authorized by all necessary limited partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possessdefault or Debt Repayment Triggering Event under, and are or result in compliance with the terms ofcreation or imposition of any lien, all adequate Licenses necessary charge or material to the conduct of the business encumbrance upon any property or assets of the Manager with respect pursuant to the Company now conducted any agreement to which it is bound or proposed to which any of its property or assets is subject (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the Disclosure Package and aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the Management Agreement to be conducted by them and have not received provisions of the limited partnership agreement or other organizational documents of the Manager or any notice of proceedings relating to the revocation applicable law, statute, rule, regulation, judgment, order, writ or modification decree of any Licenses thatgovernment, if determined adversely to government instrumentality or court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiariesassets, properties or operations.
(g) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, (i) there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting the Manager that would, individually or in the aggregate, have reasonably be expected to result in a Material Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Manager of its obligations hereunder; and (ii) the aggregate of all pending legal or governmental proceedings to which the Manager is a party or of which any of its property or assets is the subject, including ordinary routine litigation incidental to the business, would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(h) Except as disclosed in Neither the Disclosure Package, there has been no change, Manager nor any development or event involving a prospective changepartner, in the condition (financial or otherwise)officer, results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers agent, affiliate or other key persons person associated with or acting on behalf of the Manager named has taken any action directly or indirectly that would result in a violation of the Anti-Corruption Laws. The Manager has instituted, maintains and enforces, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with the Anti-Corruption Laws.
(i) The operations of the Manager are and have been conducted at all times in compliance with applicable Anti-Money Laundering Laws.
(j) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Manager of its obligations hereunder, in connection with the offering or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act or state securities laws or as are described in the Disclosure PackageRegistration Statement, the Time of Sale Information or the Prospectus.
(k) The Manager has not been notified that any executive officer of the Company or the Manager plans to terminate his, her or their employment with his, her or their current employer. Neither the Manager nor, to the knowledge of the Company, any executive officer or key employee of the Company or the Manager, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package.
(j) The Manager Registration Statement, the Time of Sale Information and the Prospectus, unless a waiver in writing has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplatedbeen obtained.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains intends to operate a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by it on behalf of the Manager under Company or the Operating Partnership pursuant to its duties set forth in the Amended Management Agreement are will be executed in accordance with its management’s general or specific authorization and (B) access to the Company’s or the Operating Partnership’s assets is permitted only in accordance with the internal polices, controls and procedures of the Managermanagement’s general or specific authorization.
(om) The duties of the Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or set forth in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described Amended Management Agreement and disclosed in the Registration Statement, the Disclosure Package Time of Sale Information and the Prospectus accurately reflect in all material respects are not prohibited by the current intentions Investment Advisers Act of 1940, as amended, or the Manager with respect to the operation of the Company’s business, rules and no material deviation from such investment strategy is currently contemplated. regulations thereunder.
(n) The Manager has also reviewed not taken, and will not take, directly or indirectly, any action that constituted, or any action designed to, or that might reasonably be expected to cause or result in or constitute, under the representations and warranties Securities Act or otherwise, stabilization or manipulation of the price of any security of the Company set forth in Section 1 or the Operating Partnership to facilitate the sale or resale of this Agreement and, although the Manager is not passing upon and does not assume responsibility Notes or for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respectother purpose. Any certificate signed by any officer or any authorized representative of the Manager and delivered to the Representative Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter the Underwriters as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes covered thereby as of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to date or dates indicated on such reliancecertificate.
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters thatSmit▇ ▇▇▇▇▇▇ ▇▇▇t:
(a) Any information regarding The Manager has been duly incorporated and is an existing corporation in good standing under the Manager and/or laws of the State of Delaware, with corporate power and authority to conduct its subsidiaries that is included business as described in the Registration Statement, the Prospectus or the Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respectsProspectus.
(b) The Manager has been is duly organized registered as an investment adviser under the Investment Advisers Act and is existing and in good standing under not prohibited by the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property Investment Advisers Act or the conduct of its business requires Investment Company Act, or the rules and regulations under such qualification except where acts, from acting as Manager for the failure to be so qualified would not have a Material Adverse EffectCompany as contemplated by the Prospectus.
(c) This Agreement has been duly authorized, exe- cuted and delivered by the Manager.
(d) The execution, delivery and performance of this Manager Agreement and the transactions contemplated therebyResearch Agreement have each been duly authorized, including the issuance executed and sale delivered on behalf of the Securities Manager and each constitutes a valid and binding obligation of the Manager enforceable in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization or of the laws relating to or affecting creditors' rights generally and to general equity principles; and neither the execution and delivery of this Agreement, the Management Agreement or the Research Agreement nor the performance by the Manager of its obligations thereunder will not conflict with or result in a breach or violation of any other terms and provisions of the terms charter or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets By-laws of the Manager or any of its subsidiaries pursuant tolaw, the organizational documents of order, rule or regulation applicable to the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental United States jurisdiction, court, federal or state regulatory body, administrative agency or body other governmental body, stock exchange or any court, domestic or foreign, securities association having jurisdiction over the Manager or any its properties or operations, or, to the best knowledge of its subsidiaries the Manager after reasonable investigation, constitute, with or any without giving notice or lapse of their propertiestime or both, or a default under, any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(de) This Agreement has been duly authorized, executed and delivered All written information furnished by the Manager.
(e) The management agreement between Manager specifically for use in the Company Registration Statement and Prospectus, including, without limitation, the description of the Manager, as amended does not, and described in on the Disclosure Package (Expiration Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make the “Management Agreement”), has been duly authorized, executed Registration Statement and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principlesProspectus not misleading.
(f) No consentThere has not, approvalsince the date of the Prospectus, authorizationbeen any material adverse change, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Disclosure Package, there has been no change, nor any development or event involving reasonably likely to cause a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the 's ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final ProspectusManager Agreement.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any Subsequent to the respective dates as of which information regarding the Manager and/or its subsidiaries that is included given in the Registration StatementStatement and the Prospectus, except as set forth in the Prospectus Registration Statement and the Prospectus, there has been no Material Adverse Change of the Manager whether or not arising from transactions in the Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respectsordinary course of business.
(b) The This Agreement and the Management Agreement to be entered into on or prior to the Closing Date between the Company and the Manager, and the Clarion Capital Sub- Advisory Agreement (the "Clarion Agreement") to be entered into on or prior to the Closing Date between the Manager and Clarion Partners, LLC, and the transactions contemplated herein and therein have been duly and validly authorized by the Manager and this Agreement has been, and each of the Management Agreement and the Clarion Agreement has been or will be, duly organized and is existing validly executed and in good standing under delivered by the laws of its state of organizationManager. [Representation and warranty may be expanded to cover additional agreements, if any, with the limited liability company power and authority to own its properties and conduct its business as described in the Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse EffectManager.]
(c) The execution, delivery delivery, and performance of this Agreement, the Management Agreement and the Clarion Agreement and the consummation of the transactions contemplated thereby, including the issuance hereby and sale of the Securities thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Manager pursuant to any agreement, instrument, franchise, license or permit to which the Manager is a party or by which it or any of its subsidiaries pursuant to, properties or assets may be bound or (ii) violate or conflict with any provision of the organizational documents certificate of incorporation or bylaws of the Manager or (iii) violate or conflict with any of its subsidiariesjudgment, any decree, order, statute, rule, rule or regulation or order of any court or any public, governmental or regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries properties or any of their propertiesassets, except, with respect to clauses (i) and (iii) above, for those violations or any agreement or instrument to which the Manager or any of its subsidiaries is conflicts that would not have a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and Material Adverse Effect on the Manager, as amended and described in or a material adverse effect on the Disclosure Package (the “Management transactions contemplated by this Agreement”), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(f) . No consent, approval, authorization, order, registration, filing, qualification, license or order ofpermit of or with any court or any public, governmental or filing or registration with, any person (including any governmental regulatory agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to having jurisdiction over the Manager or any of its subsidiariesproperties or assets is required for the execution, woulddelivery and performance of this Agreement by the Manager. [Representation and warranty may be expanded to cover additional agreements, individually if any, with the Manager.]
(d) The Manager has been duly organized and is validly existing as a limited liability corporation in good standing under the laws of the State of New York. The Manager has been duly qualified and is in good standing as a foreign corporation, in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which will not in the aggregate, aggregate have a Material Adverse EffectEffect on the Manager or a material adverse effect on the transactions contemplated by this Agreement. The Manager has all requisite power and authority, and all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits of and from all public, regulatory or governmental agencies and bodies, to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus, except for the absence of which in the aggregate would not have a Material Adverse Effect on the Manager or a material adverse effect on the transactions contemplated by this Agreement, and no such consent, approval, authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed in the Registration Statement and the Prospectus.
(he) The Manager has no subsidiaries.
(f) Except as disclosed described in the Disclosure PackageProspectus, there has been is no change, nor litigation or governmental proceeding to which the Manager is a party or to which any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects property of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company subject or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager norwhich is pending or, to the knowledge of the Manager, contemplated against the Manager which might result in any officers or other key persons Material Adverse Change of the Manager named Manager, which might materially and adversely affect the transactions contemplated by this Agreement or which is required to be disclosed in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company Registration Statement or the Manager as described in the Disclosure PackageProspectus and is not so disclosed.
(jg) The Manager has not takentaken and will not take, directly or indirectly, any action that is designed to cause or that has constituted result in, or that would which constitutes or which might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security the shares of the Company Common Stock to facilitate the sale or resale of the SecuritiesShares.
(h) The Manager has filed all necessary federal, state and foreign income and franchise tax returns and has paid all taxes required to be paid by it and, if due and payable, any related or similar assessment, fine or penalty levied against it, except insofar as the failure to file such returns would not have a Material Adverse Effect on the Manager or a material adverse effect on the transactions contemplated by this Agreement. The Manager has made adequate charges, accruals and reserves in its financial statements in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Manager has not been finally determined, except to the extent of any inadequacy that would not have a Material Adverse Effect on the Manager or a material adverse effect on the transactions contemplated by this Agreement.
(i) The Manager is insured by recognized financially sound and reputable institutions with policies in such amounts and with such deductibles and covering such risks that the Manager believes are adequate to insure against potential losses, with such policies including, without limitation, policies covering errors and omissions and fidelity bonds. The Manager has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Change of the Manager. The Manager has not been denied any insurance coverage for which it has sought or applied.
(j) Except as otherwise disclosed in the Prospectus, there are no business relationships or related-party transactions of the type described in Item 404 of Regulation S-K of the Commission involving the Company or its Subsidiaries and the Manager, except for such transactions that would be considered immaterial under such Item 404. The descriptions in the Prospectus under the caption "Certain Transactions with Related Parties" are complete and accurate in all material respects.
(k) There are no pending actions, suits The Manager is not and will not be an "investment company" or proceedings (including any inquiries or investigations a company "controlled" by any court or governmental agency or body, domestic or foreign) against or affecting an "investment company" within the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability meaning of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.Investment Company Act
(l) The Manager is not prohibited by and will not be a "broker" within the Investment Advisers Act meaning of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
(mSection 3(a)(4) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager Exchange Act or any a "dealer" within the meaning of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(nSection 3(a)(5) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(oExchange Act or required to be registered pursuant to Section 15(a) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respectExchange Act. Any certificate signed by an officer of the Manager and delivered to the Representative Representatives or to their counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliancecovered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Clarion Commercial Holdings Inc)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters ▇▇▇▇▇ ▇▇▇▇▇▇ that:
(a) Any information regarding The Manager has been duly incorporated and is an existing corporation in good standing under the Manager and/or laws of the State of Delaware, with corporate power and authority to conduct its subsidiaries that is included business as described in the Registration Statement, the Prospectus or the Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respectsProspectus.
(b) The Manager has been is duly organized registered as an investment adviser under the Investment Advisers Act and is existing and in good standing under not prohibited by the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property Investment Advisers Act or the conduct of its business requires Investment Company Act, or the rules and regulations under such qualification except where acts, from acting as Manager for the failure to be so qualified would not have a Material Adverse EffectCompany as contemplated by the Prospectus.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(ed) The management agreement between the Company Management Agreement and the Manager, as amended and described in the Disclosure Package (the “Management Agreement”), has Research Agreement have each been duly authorized, executed and delivered by on behalf of the Manager and each constitutes a valid and binding agreement obligation of the Manager enforceable against the Manager in accordance with its terms, except subject, as to the extent that enforcement thereof may be limited by enforcement, to applicable bankruptcy, insolvency, reorganization or other laws relating to or affecting enforcement creditors' rights generally and to general equity principles; and neither the execution and delivery of creditors’ rights this Agreement, the Management Agreement or the Research Agreement nor the performance by the Manager of its obligations thereunder will conflict with or result in a breach or violation of any of the terms and provisions of the charter or By-laws of the Manager or any law, order, rule or regulation applicable to the Manager of any United States jurisdiction, court, federal or state regulatory body, administrative agency or other governmental body, stock exchange or securities association having jurisdiction over the Manager or its properties or operations, or, to the best knowledge of the Manager after reasonable investigation, constitute, with or without giving notice or lapse of time or both, a default under, any agreement or instrument to which the Manager is a party or by general equitable principleswhich the Manager or to which any of the properties of the Manager is subject.
(e) All written information furnished by the Manager specifically for use in the Registration Statement and Prospectus, including, without limitation, the description of the Manager, does not, and on the Expiration Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make the Registration Statement and Prospectus not misleading.
(f) No consentThere has not, approvalsince the date of the Prospectus, authorizationbeen any material adverse change, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Disclosure Package, there has been no change, nor any development or event involving reasonably likely to cause a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the 's ability of the Manager to perform its obligations under this Agreement or under the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the General Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is true and accurate in all material respects.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement, the Management Agreement and the Sub-Management Agreement and the transactions contemplated thereby, including the issuance hereby and sale of the Securities thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between Each of the Company Management Agreement and the Manager, as amended and described in the Disclosure Package (the “Sub-Management Agreement”), Agreement has been duly authorizedauthorized by the Manager and, as of the Closing Time, will be duly executed and delivered by the Manager and constitutes will constitute a valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Governmental Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the General Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Governmental Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(hg) Except as disclosed in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement, the Management Agreement or the Sub-Management Agreement.
(ih) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Registration Statement, the Prospectus and the General Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Registration Statement, the Prospectus and the General Disclosure Package plans to terminate his or her employment with the Manager or its affiliatesManager. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Registration Statement, the Prospectus and the General Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the Prospectus and the General Disclosure Package.
(ji) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesShares or the Private Placement Shares.
(kj) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(lk) The Manager is not prohibited by duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (“"Advisers Act”"), or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
(ml) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(pm) The Company’s 's investment strategy described in the Registration Statement, the General Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Javelin Mortgage Investment Corp.)
Representations and Warranties of the Manager. The Manager represents and warrants toto each of the Underwriters, and agrees withas of each Representation Date, the Underwriters thatas follows:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Disclosure Package is derived from the Manager’s accounting or other applicable records and is accurate in all material respects.
(bi) The Manager has been duly organized and is validly existing and as a limited liability company in good standing under the laws of its state jurisdiction of organization, formation with the full limited liability company power and authority to own its properties and to conduct its business businesses as described in each of the Registration Statement, the General Disclosure Package; Package and the Prospectus, and to execute, deliver and perform its obligations under this Agreement.
(ii) The Manager is duly qualified to do business and is in good standing as a foreign corporation limited liability company in good standing in all other jurisdictions each jurisdiction in which the character or location of its ownership properties (owned, leased or lease of property licensed) or the nature or conduct of its business requires makes such qualification necessary, except where the failure for those failures to be so qualified or in good standing which will not in the aggregate have a material adverse effect on the condition (financial or otherwise), results of operations, business or properties of the Manager (any such effect or change, where the context so requires, is hereinafter called a “Manager Material Adverse Effect” or “Manager Material Adverse Change”).
(iii) The Manager (A) is not in violation of its limited liability company agreement, (B) is not in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Manager is a party or by which the Manager is bound or to which any of its properties or assets is subject and (C) is not in violation in any respect of any statute or any judgment, decree, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Manager or any of its properties or assets, except in the case of (B) or (C) above any violation or default that would not have a Manager Material Adverse Effect.
(civ) The execution, delivery delivery, and performance of this Agreement and the consummation of the transactions contemplated therebyhereby and compliance by the Manager with its obligations hereunder, including the issuance do not and sale of the Securities will not (A) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents any indenture, mortgage, deed of the Manager or any of its subsidiariestrust, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any loan agreement or instrument other agreement, instrument, franchise, license or permit to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries properties or assets may be bound and which is bound or material to which any the business of the properties Manager, (B) violate or conflict with any provision of the limited liability company of the Manager or (C) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Manager or its subsidiaries is subjectproperties or assets, except, with respect to clauses (A) and (C), conflicts or violations that could not reasonably be expected to have a Manager Material Adverse Effect.
(dv) This Agreement has been duly and validly authorized, executed and delivered by the Manager.
(evi) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package Manager does not have any employees (the “Management Agreement”but does have a consultant), has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Disclosure Package.
(jvii) The Manager has not takentaken nor will take, directly or indirectly, any action that is designed to cause or that has result in, or which constituted or that would which might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security the shares of the Company Preferred Stock to facilitate the sale or resale of the SecuritiesShares (it being understood that the purchase of any Shares in this offering by the Manager and/or any of its affiliates as described in the Prospectus and/or as provided herein with respect to the Affiliate Shares shall not be deemed to constitute stabilization or manipulation of the price of the shares of Preferred Stock).
(kviii) There are Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no pending actions, suits or proceedings (including any inquiries or investigations by any court legal or governmental agency or body, domestic or foreign) against or affecting proceeding to which the Manager is a party, or any property of its subsidiaries the Manager is the subject that, singly or any of their respective properties thatin the aggregate, if determined adversely to the Manager or any of its subsidiariesManager, would, individually or in the aggregate, would reasonably be likely to have a Manager Material Adverse Effect, or would materially Effect and adversely affect to the ability best of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplatedcontemplated by governmental authorities or threatened or contemplated by others.
(lix) The Manager operates under the Company’s system of internal accounting controls sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by it on behalf of the Company pursuant to its duties set forth in the Management Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
(x) The Manager is not prohibited by registered as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and is not prohibited by the Advisers Act, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ and officer’s insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s general or specific authorization and (B) access to the Company’s assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s investment strategy described in the Registration Statement, the Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, the Underwriters that:
(a) Any information regarding the Manager and/or its subsidiaries that is included in the Registration Statement, the Prospectus or the Time of Sale Disclosure Package is derived from the Manager’s 's accounting or other applicable records and is accurate in all material respects. ____________________________ 1 Subject to revision depending on use of proceeds.
(b) The Manager has been duly organized and is existing and in good standing under the laws of its state of organization, with the limited liability company power and authority to own its properties and conduct its business as described in the Time of Sale Disclosure Package; and the Manager is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance of this Agreement and the transactions contemplated thereby, including the issuance and sale of the Securities and the issuance of the shares of Common Stock issuable upon the conversion of the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Manager or any of its subsidiaries pursuant to, the organizational documents of the Manager or any of its subsidiaries, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Manager or any of its subsidiaries or any of their properties, or any agreement or instrument to which the Manager or any of its subsidiaries is a party or by which the Manager or any of its subsidiaries is bound or to which any of the properties of the Manager or any of its subsidiaries is subject.
(d) This Agreement has been duly authorized, executed and delivered by the Manager.
(e) The management agreement between the Company and the Manager, as amended and described in the Disclosure Package (the “Management Agreement”), Agreement has been duly authorized, executed and delivered by the Manager and constitutes valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ ' rights or by general equitable principles.
(f) No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) relating to the Manager is required for the consummation of the transactions contemplated by this Agreement in connection with the offering, issuance and sale of the Securities, except such as have been obtained, or made and such as may be required under state securities laws.
(g) The Manager and its subsidiaries possess, and are in compliance with the terms of, all adequate Licenses necessary or material to the conduct of the business of the Manager with respect to the Company now conducted or proposed in the Time of Sale Disclosure Package and the Management Agreement to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
(h) Except as disclosed in the Time of Sale Disclosure Package, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Manager and its subsidiaries, taken as a whole, that is material and adverse to the Company or that would prevent the Manager from carrying out its obligations under this Agreement or the Management Agreement.
(i) To the knowledge of the Manager, no officers or other key persons of the Manager and its affiliates named in the Time of Sale Disclosure Package, or any member or employee of the Manager that would be reasonably be deemed significant to the delivery of services by the Manager to the Company as contemplated by the Time of Sale Disclosure Package plans to terminate his or her employment with the Manager or its affiliates. Neither the Manager nor, to the knowledge of the Manager, any officers or other key persons of the Manager named in the Time of Sale Disclosure Package, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Time of Sale Disclosure Package.
(j) The Manager has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) There are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Manager or any of its subsidiaries or any of their respective properties that, if determined adversely to the Manager or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect, or would materially and adversely affect the ability of the Manager to perform its obligations under this Agreement or the Management Agreement; and, to the Manager’s 's knowledge, no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or contemplated.
(l) The Manager is not prohibited by registered as an investment adviser pursuant to the Investment Advisers Act of 1940, as amended (“"Advisers Act”), or the rules ") and regulations thereunder, is not prohibited from performing its obligations under the Management Agreement as described in the Registration Statement, the Time of Sale Disclosure Package and the Final ProspectusProspectus pursuant to the Advisers Act or any of the rules and regulations promulgated thereunder.
(m) The Manager and each of its subsidiaries is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Manager or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; none of the Manager or any of its subsidiaries has been refused any insurance coverage sought or applied for; and the Manager has obtained directors’ ' and officer’s 's insurance in such amounts as is customary for companies engaged in the type of business conducted by the Manager.
(n) The Manager maintains a system of internal controls in place sufficient to provide reasonable assurance that (A) the transactions that may be effectuated by the Manager under the Management Agreement are executed in accordance with its management’s 's general or specific authorization and (B) access to the Company’s 's assets is permitted only in accordance with the internal polices, controls and procedures of the Manager.
(o) The Manager is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) The Company’s 's investment strategy described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus accurately reflect in all material respects the current intentions of the Manager with respect to the operation of the Company’s 's business, and no material deviation from such investment strategy is currently contemplated. The Manager has also reviewed the representations and warranties of the Company set forth in Section 1 of this Agreement and, although the Manager is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of such representation and warranties, nothing has come to the Manager's attention which leads it to believe that such representations and warranties are inaccurate in any material respect. Any certificate signed by the Manager and delivered to the Representative Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Manager to each Underwriter as to the matters set forth therein. The Manager acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (Armour Residential REIT, Inc.)