Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV that: (i) The Manager is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware with full power and authority to own, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. (ii) The Manager is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect. (iii) 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. (iv) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be bound or affected except, in the case of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (A) any provision of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws. (vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect. (viii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date. (xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. (xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof. (xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus. (xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 5 contracts
Sources: At the Market Issuance Sales Agreement (Resource Capital Corp.), At the Market Issuance Sales Agreement (Resource Capital Corp.), At the Market Issuance Sales Agreement (Resource Capital Corp.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto each Underwriter as follows:
(ia) The Manager has been duly formed and is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware Delaware, with full power and authority (partnership and other) to own, lease or operate own its assets properties and to conduct its business as described in the Prospectus Prospectus, and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is has been duly qualified or licensed by, as a foreign partnership for the transaction of business and is in good standing in, under the laws of each other jurisdiction in which it currently conducts its business or in which it owns or leases property properties, or maintains an office and in which conducts any business, so as to require such qualification or licensing is necessary and in which qualification, other than where the failure, individually or in the aggregate, failure to be so qualified or licensed could have, individually or in good standing would not have a material adverse effect on the aggregate, Manager and its subsidiaries taken as a Material Adverse Effectwhole.
(iiib) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by any provision of the Advisers Act or the 1940 Act, or the rules and regulations under such Acts, from acting as an investment adviser for the Fund as contemplated in compliance the Prospectus and the Management Agreement. There does not exist to the knowledge of the Manager any proceeding, which might materially adversely affect the registration of the Manager with the Commission.
(c) Each of this Agreement, the Management Agreement and any other Fund Agreement to which the Manager is a party has been duly authorized, executed and delivered by the Manager and complies with all applicable federalprovisions of the Advisers Act, statethe 1940 Act, local and foreign lawsthe rules and regulations under such Acts.
(d) Neither the execution, rulesdelivery or performance by the Manager of its obligations under this Agreement, regulations, orders, decrees and judgments, including those relating the Management Agreement or any other Fund Agreement to which the Manager is a party nor the consummation of the transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually contemplated therein or in the aggregate, Registration Statement or Prospectus nor the fulfillment of the terms thereof will conflict with or result in a Material Adverse Effect.
(iv) The Manager is not (a) in breach of any of the terms or provisions of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected exceptto which any of the property or assets of the Manager is subject, nor will any such action result in any violation of the case provisions of clause the organizational documents of the Manager or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Manager or any of its properties.
(be) onlyOther than (i) as set forth in Part II, for breaches or defaults that could not reasonably be expected to have, individually or in Item 1 of the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement Quarterly Report on Form 10-Q filed by the Manager will not conflict withwith the Commission with respect to the quarterly periods ended March 31, 2001, June 30, 2001 and September 30, 2001 pursuant to Section 13 or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under15(d) (A) any provision of the Manager Charter Documents, 1934 Act; (Bii) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, as set forth in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance Current Report on Form 8-K filed by the Manager with the Commission on December 13, 2001 and January 10, 2002 pursuant to Section 13 or 15(d) of this Agreementthe 1934 Act; and (iii) the complaint entitled ▇▇▇▇▇ v. Alliance Capital Management L.P. and Alliance Premier Growth Fund ("▇▇▇▇▇ Complaint"), except such as have been obtained which was filed in Federal district court in the District of New Jersey against the Manager and madeAlliance Premier Growth Fund, or as may be required, under the Securities Act and the Exchange Actcomplaint entitled ▇▇▇▇▇ v. Alliance Capital Management L.P. and Alliance Premier Growth Fund ("▇▇▇▇▇ Complaint"), under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required which was filed in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described Federal district court in the Prospectus exceptDistrict of New Jersey against the Manager and Alliance Premier Growth Fund, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or plaintiffs' allegations and relief sought in the aggregate, a Material Adverse Effect; ▇▇▇▇▇ Complaint and the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable ▇▇▇▇▇ Complaint being virtually identical to the Manager except where such violation or default could not reasonably be expected to have, individually or allegations and relief sought in the aggregateactions discussed in (ii) above, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There there are no legal or governmental investigations, actions, suits, proceedings, inquiries suits or investigations proceedings pending or, to the knowledge of the Manager, threatened against or affecting the Manager or any of its subsidiaries or any of their respective assetsproperties or to which the Manager or any of its subsidiaries is or may be a party or to which any property of the Manager or any of its subsidiaries is or may be the subject which, and if determined adversely to the knowledge Manager or any of the Managerits subsidiaries, its respective directors, officers or employees, at law would individually or in equitythe aggregate have, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually a material adverse effect on the Manager's ability to perform its obligations under the Management Agreement and, to the Manager's knowledge, no such proceedings are threatened or in the aggregate, a Material Adverse Effectcontemplated by governmental authorities or threatened by others.
(ixf) Since No consent, approval, authorization, order, license, registration or qualification of, or any filing with, any court or governmental agency or body, whether foreign or domestic, is required for the consummation by the Manager of the transactions contemplated by this Agreement.
(g) The Manager owns or possesses all material governmental licenses, permits, consents, orders, approvals or other authorizations, whether foreign or domestic, to enable the Manager to perform its obligations under the Management Agreement.
(h) The information regarding the Manager in the Registration Statement and the Prospectus complies in all material respects with the requirements of Form N-2 and, as of the date of the Prospectus, there such information regarding the Manager did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not been taken and will not take, directly or indirectly, any event, circumstance action designed to or change to the Manager that could which should reasonably be expected to havecause or result in or which will constitute, individually stabilization or manipulation of the price of the Shares in violation of federal securities laws and the aggregate, a Material Adverse EffectManager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(xj) The Manager and its subsidiaries, in In the aggregate, carry event that the Fund or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of its subsidiaries has been refused any insurance coverage sought an Internet web site or applied for; and neither similar electronic means, the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue effectively prohibit access to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed such promotional materials by persons other than qualified broker-dealers and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect registered representatives thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 3 contracts
Sources: Underwriting Agreement (Alliance National Municipal Income Fund), Underwriting Agreement (Alliance New York Municipal Income Fund), Underwriting Agreement (Alliance California Municipal Income Fund)
Representations and Warranties of the Manager. 6.1 The Manager represents and warrants tohereby represents, warrants, covenants and agrees withto and with the Company, MLV as of the date hereof and on an ongoing basis, that:
(ia) The 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 its 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 Private Placement Memorandum is a corporation accurate in all material respects, and does not omit any information relevant to appointment of the Manager or the management of the Portfolio;
(c) it is an entity duly organized and validly existing and in good standing under the laws of the State Cayman Islands and is qualified to do business and is in good standing in each other jurisdiction in which the nature or conduct of Delaware with its business requires such qualification and in which the failure to so qualify would materially adversely affect its ability to conduct its business activities or those of the Company;
(d) it has full power and authority to own, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect.
(iii) 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.
(iv) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be bound or affected except, in the case of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (A) any provision of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of perform its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.this Agreement;
(viie) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries this Agreement has been refused any insurance coverage sought or applied for; duly and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as validly authorized, executed and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting delivered on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms;
(f) none of the execution and delivery of this Agreement, except as may be limited the incurring of the obligations set forth in this Agreement and the performance of such obligations will violate, or constitute a breach of or default under, the constitutive documents of the Manager or any agreement or instrument by bankruptcywhich it is bound or any order or rule, insolvency, reorganization, moratorium law or similar laws affecting creditors’ rights generally, and by general principles of equity, and except regulation applicable to the extent that Manager of any court or any governmental body or administrative agency or self-regulatory authority having jurisdiction over the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.Manager;
(xiiig) The there is not pending, or, to the best of the Manager’s knowledge, threatened, any action, suit or proceeding before or by any court or other governmental or self-regulatory authority to which the Manager is not prohibited by a party which might reasonably be expected to result in any material adverse change in the Investment Advisers Act of 1940condition, as amendedfinancial or otherwise, or the rules and regulations thereunderregulatory status, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered the Manager is not currently subject to MLV 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 counsel for MLV which it is subject;
(i) it will promptly, where not prohibited by law from doing so, notify the Company of any 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 appropriate, to enable it to perform its duties pursuant to or this Agreement; and
(k) all information and documentation it has provided to the Company, in connection with contemplation of this Agreement shall be deemed to be a representation is accurate in all material respects and warranty by the Manager has not failed or omitted to MLV as make disclosure to the matters set forth thereinCompany, of any matter that might reasonably be considered relevant to the Manager’s obligations hereunder or which would be reasonably likely to impact the Company decision to appoint the Manager hereunder or which could reasonably be expected to impact the competence and probity of the Manager.
Appears in 3 contracts
Sources: Management Agreement (Prestige Wealth Inc.), Management Agreement (Prestige Wealth Inc.), Management Agreement (Prestige Wealth Inc.)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto the Underwriters as follows:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in have a material adverse effect on the aggregate, performance by the Manager of its obligations under the Management Agreement (a “Manager Material Adverse Effect”).
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe Disclosure Package and the Prospectus, body, arbitration panel, authority except where the failure to possess such authorizations or agency the adverse outcome of which could reasonably be expected to havemake such declarations and filings would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of the Notes to facilitate the sale or resale of the Notes in violation of Regulation M under the Exchange Act.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of Disclosure Package and the Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is constitutes a legal, valid and legally binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations in respect thereof.
(xiii) The Manager is not prohibited and except to the extent that enforcement thereof may be limited by the Investment Advisers Act of 1940bankruptcy, as amendedfraudulent conveyance, or the rules insolvency, reorganization, moratorium and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth thereinproceeding in equity or at law.
Appears in 2 contracts
Sources: Underwriting Agreement (Ready Capital Corp), Underwriting Agreement (Ready Capital Corp)
Representations and Warranties of the Manager. The Manager represents and warrants toto the Underwriters as of the date hereof, and agrees withthe Applicable Time, MLV as of the time of purchase and, if applicable, at each additional time of purchase that:
(ia) The Manager has been duly formed and is a corporation duly organized and validly existing and as a limited liability company in good standing under the laws of the State of Delaware with Delaware, is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which its ownership or lease of property or assets or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the business, assets, properties, prospects, financial condition or results of operation of the Manager and its subsidiaries taken as a whole (a “Manager Material Adverse Effect”), and has full limited liability company power and authority necessary to own, hold, lease or and/or operate its assets and properties, to conduct its the business in which it is engaged and as described in the Prospectus and to execute enter into and deliver this Agreement perform its obligations under the Management Agreement, and to consummate the transactions contemplated hereby Company is in compliance in all material respects with the laws, orders, rules, regulations and therebydirectives issued or administered by such jurisdictions.
(iib) The Manager is This Agreement has been duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office validly authorized and in which such qualification or licensing is necessary validly executed and in which delivered by the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse EffectManager.
(iiic) The Management Agreement has been duly authorized, executed and delivered by the Manager is and constitutes a valid and binding agreement of the Manager enforceable in compliance accordance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliatesits terms, except where to the failure extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles and except to so comply could not reasonably the extent that any indemnification provision thereof may be expected to have, individually or limited by public policy considerations in the aggregate, a Material Adverse Effectrespect thereof.
(ivd) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a result in any breach of, or constitute a default under), (i) its articles certificate of incorporation formation or by-laws (collectively, the “Manager Charter Documents”) operating agreement or (bii) in breach any obligation, agreement, covenant or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions condition contained in any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or affected exceptaffected, in the case effect of which breach or default under this clause (bii) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the . The execution, delivery and performance of this Agreement by and the Manager consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would result in any breach of or constitute a breach of, or default under) ), (Ai) any provision of the Manager Charter Documents, (B) any certificate of formation or operating agreement of the Manager’s and any of its respective affiliates’ obligations under , (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which any such party the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected affected, the effect of which could have a Manager Material Adverse Effect, or (Ciii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit judgment or order applicable to the Manager exceptManager.
(A) No filing with, in the case of clauses or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) and no authorization, approval, vote or other consent of any stockholder or creditor of the Manager, (C) onlyno waiver or consent under any contract, for such conflictslicense, breaches repurchase agreement, indenture, mortgage, deed of trust, bank loan or defaults that could not reasonably credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be expected to havebound or affected and (D) no authorization, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorizationvote or other consent of any other person or entity, consent is necessary or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of its obligations under this AgreementAgreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been obtained and madealready obtained, or as may be required, required under the Securities Act and the Exchange Act, under or state securities laws or the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licensespermits, authorizations, consents and approvals from other personsPersons, required in order to conduct its business as it described in the Prospectus, except as such as could not have a Manager Material Adverse Effect. The Manager is being conducted at this time, and will not required by any applicable law to obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under accreditation or certification from any federal, state, local governmental agency or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required authority in order to conduct its business provide the products and services which it currently provides or which it proposes to provide as it is proposed to be conducted as described set forth in the Prospectus except, in each case, where the failure to obtain any except as such license, authorization, consent or approval as could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the . The Manager is not in violation of, or in default under, any of its obligations under any such license, permit, authorization, consent or approval of or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viiig) There are no actions, suits, proceedingsclaims, investigations, inquiries or investigations proceedings pending or, to the knowledge of the Manager’s knowledge, threatened against to which the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, directors is a party or of which any of its properties or other assets is subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to haveresult in a judgment, individually decree or in the aggregate, order having a Manager Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiiih) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as contemplated by the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 2 contracts
Sources: Underwriting Agreement (Annaly Capital Management Inc), Underwriting Agreement (Annaly Capital Management Inc)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto the Underwriters as follows:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, have a material adverse effect (a “Manager Material Adverse Effect”) on the performance by the Manager of its obligations under the Management Agreement.
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the performance by the Manager of the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the performance by the Manager of the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe Disclosure Package and the Prospectus, body, arbitration panel, authority except where the failure to possess such authorizations or agency the adverse outcome of which could reasonably be expected to havemake such declarations and filings would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of the Notes to facilitate the sale or resale of the Notes in violation of Regulation M under the Exchange Act.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of Disclosure Package and the Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and legally binding agreement of the Manager Manager, enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations and except to the extent that enforcement thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in respect thereofa proceeding in equity or at law.
(xiiik) The Manager Subsequent to the respective dates as of which information is not prohibited by given in the Investment Advisers Act Disclosure Package and the Prospectus (exclusive of 1940any amendments or supplements thereto subsequent to the date of this Agreement), as amendedthere has been no change, or the rules and regulations thereunderany development or event involving a prospective change, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer business, management, financial position, results of operations, business, properties or prospects of the Manager and delivered its Subsidiaries taken as a whole, that is material and adverse to MLV the Company or to counsel for MLV pursuant to or in connection with that would prevent the Manager from carrying out its obligations under this Agreement shall be deemed to be a representation and warranty by or the Manager to MLV as to the matters set forth thereinManagement Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Ready Capital Corp), Underwriting Agreement (Ready Capital Corp)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV that:
(i) The Manager is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware with full power and authority to own, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect.
(iii) 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.
(iv) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be bound or affected except, in the case of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (A) any provision of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 1 contract
Sources: At the Market Issuance Sales Agreement (Resource Capital Corp.)
Representations and Warranties of the Manager. The Manager represents and warrants towarrants, and agrees with, MLV the several Underwriters that:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, have a material adverse effect (a “Manager Material Adverse Effect”) on the performance by the Manager of its obligations under the Management Agreement.
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe General Disclosure Package and the Final Prospectus, body, arbitration panel, authority except where the failure to possess such authorizations or agency the adverse outcome of which could reasonably be expected to havemake such declarations and filings would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of any security of the Company to facilitate the sale or resale of the Offered Securities in violation of Regulation M under the Exchange Act.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of General Disclosure Package and the Final Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and legally binding agreement of the Manager Manager, enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations and except to the extent that enforcement thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in respect thereofa proceeding in equity or at law.
(xiiik) The Manager Subsequent to the respective dates as of which information is not prohibited by given in the Investment Advisers Act General Disclosure Package and the Final Prospectus (exclusive of 1940any amendments or supplements thereto subsequent to the date of this Agreement), as amendedthere has been no change, or the rules and regulations thereunderany development or event involving a prospective change, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
condition (xiv) Any certificate signed by an officer financial or otherwise), results of operations, business, properties or prospects of the Manager and delivered its Subsidiaries taken as a whole, that is material and adverse to MLV the Company or to counsel for MLV pursuant to or in connection with that would prevent the Manager from carrying out its obligations under this Agreement shall be deemed to be a representation and warranty by or the Manager to MLV as to the matters set forth thereinManagement Agreement.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents hereby makes the following representations and warrants towarranties to the Purchaser as of the date hereof, and agrees with, MLV thatunless otherwise specified:
(ia) The Manager is a corporation has been duly organized and is validly existing and as a limited liability company in good standing under the laws of the State state of Delaware with full power and authority to own, lease or operate own its assets respective properties and to conduct its business respective businesses as described in the Prospectus and to execute and deliver this Agreement SEC Reports and to consummate the transactions contemplated hereby and therebyherein.
(iib) The Manager is duly qualified or licensed by, and is in good standing in, in each jurisdiction in which it currently conducts its business businesses or in which it owns or leases real property or otherwise maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could havewould have a material adverse effect on the assets, individually business, operations, earnings, prospects, properties or in condition (financial or otherwise) of the aggregateManager, including the Manager’s provision of management and other services to the Company and the Subsidiaries (any such effect or change, where the context so requires, is hereinafter called a “Manager Material Adverse Effect”).
(iiic) The Manager is in compliance in all material respects 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.
(ivd) The Manager is not (a) in breach of, of or in default under (nor has any event occurred which that with notice, lapse of time, or both would constitute a breach of, or default under), (i) its articles of incorporation operating agreement, bylaws or by-laws other similar organizational documents (collectively, the “Manager Charter Organizational Documents”), (ii) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligationsobligation, agreementsagreement, covenants covenant or conditions condition contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which any of it or its assets may be respective properties is bound (together with the Manager Organizational Documents, the “Manager Agreements”), or affected (iii) any Law applicable to the Manager, except, in the case of clause clauses (bii) onlyand (iii) above, for such breaches or defaults that could which would not, or would not reasonably be expected to haveto, individually or in the aggregate, have a Manager Material Adverse Effect; the .
(e) The execution, delivery and performance of this Agreement and consummation of the transactions contemplated herein, and compliance by the Manager with its obligations under the Management Termination and Release Agreement, will not not: (A) conflict with, or result in any breach of of, or constitute a default under (nor constitute any event which that, with notice, lapse of time, or both would constitute a breach of, or default under) ), (Ai) any provision of the Manager Charter Organizational Documents, or (Bii) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party the Manager is a party or by which any of it or its assets respective properties may be bound or affected affected, or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order Law applicable to the Manager exceptManager, except in the case of clauses this clause (Bii) and (C) only, for such conflicts, breaches or defaults that could would not, or would not reasonably be expected to haveto, individually or in the aggregate, have a Manager Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Manager.
(vf) No approvalThis Agreement has been duly authorized, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery executed and performance delivered by the Manager and is a legal, valid and binding agreement of this Agreementthe Manager enforceable in accordance with its terms, except such as have been obtained and made, or as may be requiredlimited by bankruptcy, under the Securities Act and the Exchange Actinsolvency, under the rules and regulations of FINRAreorganization, moratorium or similar laws affecting creditors’ rights generally, and such as may be required under state or foreign securities lawsby general equitable principles.
(vig) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or ruleLaw, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this timedescribed in the SEC Reports, and will obtain all necessary except to the extent that any failure to have any such licenses, authorizations, consents and approvals and or approvals, to make all necessary any such filings required under or to obtain any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, such authorizations, consents and or approvals would not, or would not reasonably be expected to, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not required by any applicable law to obtain accreditation or certification from other persons, required any governmental agency or authority in order to conduct its business provide the products and services that it currently provides or that it proposes to provide as it is proposed to be conducted as described set forth in the Prospectus exceptSEC Reports; the Manager is not in violation of, in each casedefault under, where the failure to obtain or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation the effect of which could, or default could not reasonably be expected to haveto, individually or in the aggregate, result in a Manager Material Adverse Effect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in the SEC Reports.
(viih) No labor dispute with the employees None of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliersrespective directors, contractors officers, representatives or customers thataffiliates has taken, nor will take, directly or indirectly, any action that is designed to or that has constituted or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any such casesecurity of the Company to facilitate the sale or resale of the Securities or the Warrant Shares to be issued upon exercise of the Warrants, might have or to result in a Material Adverse Effectviolation at Regulation M under the Exchange Act.
(viiii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assetsofficers and directors or to which the properties, and to the knowledge assets or rights of the Manager, its respective directors, officers or employeesany such entity are subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panelauthority, authority arbitral panel or agency the adverse outcome of which that could result in a judgment, decree, award or order that would, or would be reasonably be expected to havelikely to, individually or in the aggregate, result in a Manager Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto the Underwriters as follows:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in have a material adverse effect on the aggregate, performance by the Manager of its obligations under the Management Agreement (a “Manager Material Adverse Effect”).
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe Disclosure Package and the Prospectus, body, arbitration panel, authority except where the failure to possess or agency make the adverse outcome of which could reasonably be expected to havesame would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of the Notes to facilitate the sale or resale of the Notes.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of Disclosure Package and the Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is constitutes a legal, valid and legally binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations in respect thereof.
(xiii) The Manager is not prohibited and except to the extent that enforcement thereof may be limited by the Investment Advisers Act of 1940bankruptcy, as amendedfraudulent conveyance, or the rules insolvency, reorganization, moratorium and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth thereinproceeding in equity or at law.
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)
Representations and Warranties of the Manager. The Manager represents and warrants toto the Underwriters as of the date hereof, and agrees withthe Applicable Time, MLV as of the time of purchase and, if applicable, at each additional time of purchase that:
(ia) The Manager has been duly formed and is a corporation duly organized and validly existing and as a limited liability company in good standing under the laws of the State of Delaware with Delaware, is duly qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction in which its ownership or lease of property or assets or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the business, assets, properties, prospects, financial condition or results of operation of the Manager and its subsidiaries, taken as a whole (a “Manager Material Adverse Effect”), and has full limited liability company power and authority necessary to own, hold, lease or and/or operate its assets and properties, to conduct its the business in which it is engaged and as described in the Prospectus and to execute enter into and deliver this Agreement and to consummate perform its obligations under the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed byManagement Agreement, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect.
(iii) The Manager is in compliance in all material respects with all applicable federalthe laws, state, local and foreign lawsorders, rules, regulations, orders, decrees regulations and judgments, including those relating to transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually directives issued or in the aggregate, a Material Adverse Effectadministered by such jurisdictions.
(ivb) This Agreement has been duly and validly authorized and validly executed and delivered by the Manager.
(c) The Management Agreement has been duly authorized, executed and delivered by the Manager and constitutes a valid and binding agreement of the Manager enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles and except to the extent that any indemnification provision thereof may be limited by public policy considerations in respect thereof.
(d) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, time or both would result in any breach of or constitute a breach of, or default under), (i) its articles certificate of incorporation formation or by-laws (collectively, the “Manager Charter Documents”) operating agreement or (bii) in breach any obligation, agreement, covenant or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions condition contained in any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which it or any of its assets or properties may be bound or affected exceptaffected, in the case effect of which breach or default under this clause (bii) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the . The execution, delivery and performance of this Agreement by and the Manager consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, time or both would result in any breach of or constitute a breach of, or default under) ), (Ai) any provision of the Manager Charter Documents, (B) any certificate of formation or operating agreement of the Manager’s and any of its respective affiliates’ obligations under , (ii) any provision of any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan or credit agreement agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which any such party the Manager is a party or by which it the Manager or any of its assets or properties may be bound or affected affected, the effect of which could have a Manager Material Adverse Effect, or (Ciii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit judgment or order applicable to the Manager exceptManager.
(A) No filing with, in the case of clauses or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) and no authorization, approval, vote or other consent of any stockholder or creditor of the Manager, (C) onlyno waiver or consent under any contract, for such conflictslicense, breaches repurchase agreement, indenture, mortgage, deed of trust, bank loan or defaults that could not reasonably credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Manager is a party or by which the Manager or any of its assets or properties may be expected to havebound or affected and (D) no authorization, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorizationvote or other consent of any other person or entity, consent is necessary or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of its obligations under this AgreementAgreement or the Management Agreement and the transactions contemplated thereby, in each case on the terms contemplated by the Prospectus, except such as have been obtained and madealready obtained, or as may be required, required under the Securities Act and the Exchange Act, under or state securities laws or the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licensespermits, authorizations, consents and approvals from other personsPersons, required in order to conduct its business as it described in the Prospectus, except as such as could not have a Manager Material Adverse Effect. The Manager is being conducted at this time, and will not required by any applicable law to obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under accreditation or certification from any federal, state, local governmental agency or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required authority in order to conduct its business provide the products and services which it currently provides or which it proposes to provide as it is proposed to be conducted as described set forth in the Prospectus exceptProspectus, in each case, where the failure to obtain any except as such license, authorization, consent or approval as could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the . The Manager is not in violation of, or in default under, any of its obligations under any such license, permit, authorization, consent or approval of or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, the effect of which could have a Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viiig) There are no actions, suits, proceedingsclaims, investigations, inquiries or investigations proceedings pending or, to the knowledge of the Manager’s knowledge, threatened against to which the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, directors is a party or of which any of its properties or other assets is subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to haveresult in a judgment, individually decree or in the aggregate, order having a Manager Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiiih) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as contemplated by the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 1 contract
Sources: Underwriting Agreement (Annaly Capital Management Inc)
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto the Underwriters as follows:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, have a material adverse effect (a “Manager Material Adverse Effect”) on the performance by the Manager of its obligations under the Management Agreement.
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the performance by the Manager of the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the performance by the Manager of the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe Disclosure Package and the Prospectus, body, arbitration panel, authority except where the failure to possess such authorizations or agency the adverse outcome of which could reasonably be expected to havemake such declarations and filings would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of the Offered Securities to facilitate the sale or resale of the Offered Securities in violation of Regulation M under the Exchange Act.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of Disclosure Package and the Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and legally binding agreement of the Manager Manager, enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations and except to the extent that enforcement thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in respect thereofa proceeding in equity or at law.
(xiiik) The Manager Subsequent to the respective dates as of which information is not prohibited by given in the Investment Advisers Act Disclosure Package and the Prospectus (exclusive of 1940any amendments or supplements thereto subsequent to the date of this Agreement), as amendedthere has been no change, or the rules and regulations thereunderany development or event involving a prospective change, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer business, management, financial position, results of operations, business, properties or prospects of the Manager and delivered its Subsidiaries taken as a whole, that is material and adverse to MLV the Company or to counsel for MLV pursuant to or in connection with that would prevent the Manager from carrying out its obligations under this Agreement shall be deemed to be a representation and warranty by or the Manager to MLV as to the matters set forth thereinManagement Agreement.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto each Underwriter as follows:
(ia) The Manager has been duly formed and is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware Delaware, with full power and authority (partnership and other) to own, lease or operate own its assets properties and to conduct its business as described in the Prospectus Prospectus, and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is has been duly qualified or licensed by, as a foreign partnership for the transaction of business and is in good standing in, under the laws of each other jurisdiction in which it currently conducts its business or in which it owns or leases property properties, or maintains an office and in which conducts any business, so as to require such qualification or licensing is necessary and in which qualification, other than where the failure, individually or in the aggregate, failure to be so qualified or licensed could have, individually or in good standing would not have a material adverse effect on the aggregate, Manager and its subsidiaries taken as a Material Adverse Effectwhole.
(iiib) The Manager is duly registered as an investment adviser under the Advisers Act and is not prohibited by any provision of the Advisers Act or the 1940 Act, or the rules and regulations under such Acts, from acting as an investment adviser for the Company as contemplated in compliance the Prospectus and the Management Agreement. There does not exist to the knowledge of the Manager any proceeding, which might materially adversely affect the registration of the Manager with the Commission.
(c) Each of this Agreement, the Management Agreement and any other Fund Agreement to which the Manager is a party has been duly authorized, executed and delivered by the Manager and complies with all applicable federalprovisions of the Advisers Act, statethe 1940 Act, local and foreign lawsthe rules and regulations under such Acts.
(d) Neither the execution, rulesdelivery or performance by the Manager of its obligations under this Agreement, regulations, orders, decrees and judgments, including those relating the Management Agreement or any other Fund Agreement to which the Manager is a party nor the consummation of the transactions with affiliates, except where the failure to so comply could not reasonably be expected to have, individually contemplated therein or in the aggregate, Registration Statement or Prospectus nor the fulfillment of the terms thereof will conflict with or result in a Material Adverse Effect.
(iv) The Manager is not (a) in breach of any of the terms or provisions of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected exceptto which any of the property or assets of the Manager is subject, nor will any such action result in any violation of the case provisions of clause the organizational documents of the Manager or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Manager or any of its properties.
(be) onlyOther than as set forth in (i) Part II, for breaches or defaults that could not reasonably be expected to have, individually or in Item 1 of the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement Quarterly Report on Form 10-Q filed by the Manager will not conflict withwith the Commission with respect to the quarterly periods ended March 31, 2001, June 30, 2001 and September 30, 2001 pursuant to Section 13 or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under15(d) (A) any provision of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) 1934 Act and (Cii) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance Current Report on Form 8-K filed by the Manager with the Commission on December 13, 2001 and January 10, 2002 pursuant to Section 13 or 15(d) of this Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange 1934 Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There there are no legal or governmental investigations, actions, suits, proceedings, inquiries suits or investigations proceedings pending or, to the knowledge of the Manager, threatened against or affecting the Manager or any of its subsidiaries or any of their respective assetsproperties or to which the Manager or any of its subsidiaries is or may be a party or to which any property of the Manager or any of its subsidiaries is or may be the subject which, and if determined adversely to the knowledge Manager or any of the Managerits subsidiaries, its respective directors, officers or employees, at law would individually or in equitythe aggregate have, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually a material adverse effect on the Manager's ability to perform its obligations under the Management Agreement and, to the Manager's knowledge, no such proceedings are threatened or in the aggregate, a Material Adverse Effectcontemplated by governmental authorities or threatened by others.
(ixf) Since No consent, approval, authorization, order, license, registration or qualification of, or any filing with, any court or governmental agency or body, whether foreign or domestic, is required for the consummation by the Manager of the transactions contemplated by this Agreement.
(g) The Manager owns or possesses all material governmental licenses, permits, consents, orders, approvals or other authorizations, whether foreign or domestic, to enable the Manager to perform its obligations under the Management Agreement.
(h) The information regarding the Manager in the Registration Statement and the Prospectus complies in all material respects with the requirements of Form N-2 and, as of the date of the Prospectus, there such information regarding the Manager did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), the Manager has not been taken and will not take, directly or indirectly, any event, circumstance action designed to or change to the Manager that could which should reasonably be expected to havecause or result in or which will constitute, individually stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and the aggregate, a Material Adverse EffectManager is not aware of any such action taken or to be taken by any affiliates of the Manager.
(xj) The Manager and its subsidiaries, in In the aggregate, carry event that the Fund or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of its subsidiaries has been refused any insurance coverage sought an Internet web site or applied for; and neither similar electronic means, the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted install and maintain policies pre-qualification and password-protection or similar procedures designed to ensure, and which are reasonably expected designed to continue effectively prohibit access to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed such promotional materials by persons other than qualified broker-dealers and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect registered representatives thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 1 contract
Sources: Underwriting Agreement (Alliance National Municipal Income Fund)
Representations and Warranties of the Manager. The Manager represents and warrants toto Southern Highlands and the Company that upon formation of the Company and upon the subsequent closing of the financing for the Project, in all cases:
1.7.1 The Company and the Manager each have the full power, authority and legal right to engage in all the transactions contemplated by this Agreement;
1.7.2 There is no suit, action or proceeding pending or, threatened against or affecting the Project or the Manager before or by any court, administrative agency or other governmental authority which could affect the validity of the transactions contemplated hereby or could interfere with the ability of the Manager to comply with the terms hereof;
1.7.3 Neither the execution nor delivery of this Agreement nor the distributions to be made to Southern Highlands, including any distribution to Southern Highlands of any portion of any Deposit made by the prospective purchaser of a Lot or Residence, will conflict with or result in a breach of any of the provisions of any law, ordinance, judgment, order, writ, injunction or decree of any court, administrative agency or other governmental authority, or of any agreement or other instrument to which the Company, the Manager or any of its Affiliates is a party or by which any of them is bound, or constitute a default under any thereof, or conflict with or result in a breach of any applicable law, rule or regulation of any such governmental authority, or result in the creation or imposition of any lien, charge or encumbrance upon any property of the Manager or any of its Affiliates;
1.7.4 No consent, approval or other authorization of or by any court, administrative agency or other governmental authority or any other entity, including any shareholder of Manager, is required in connection with the execution, delivery or compliance with the provisions of this Agreement or the consummation of the transactions contemplated by this Agreement.
1.7.5 There is no existing action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign or, pending or threatened against or affecting the Manager which could result in any material and adverse change in its condition (financial or otherwise), earnings, business affairs or business prospects, or which could materially and adversely affect the legality, validity or enforceability of this Agreement or which could have a material and adverse effect upon the Company or upon the Manager's ability to consummate the transactions and agreements contemplated by this Agreement, or to fulfill its obligations hereunder. The aggregate of all pending legal or governmental proceedings to which the Manager is a party or which affect any of their properties, including ordinary routine litigation incidental to their business, if any, would not have a material and adverse effect on the Company's condition (financial or otherwise), earnings, affairs, business or business prospects;
1.7.6 The Project and all Residences constructed as part of the Project:
1.7.6.1 will conform to all applicable governmental laws, ordinances, codes, regulations and administrative orders so as to permit the intended development of the Project and the intended sale of Lots and Residences; and
1.7.6.2 will conform to and will not violate any private restrictions, agreements, easements, covenants, conditions or servitudes, or any declaration of any of the foregoing, affecting the Project or the Manager.
1.7.7 All water, sewer, electric, gas, telephone and other utilities and services required to operate the Project and all necessary consents, licenses, permits, approvals or variances for the development of the Project (including, without limitation, all necessary building, zoning and other permits) have been obtained by the Company or can be obtained by the Company on reasonable terms and within a time period after the formation of the Company that will not impede the development of the Project, and agrees withthere is no legal impediment to the development of the Project;
1.7.8 The Manager has not assigned, MLV that:pledged, granted a security interest in, or otherwise encumbered its right in or to any portion of this Agreement;
(i) 1.7.9 The Manager is a corporation duly organized Nevada corporation and validly existing all approvals and in good standing under consents (including any "internal" or shareholder consents) required to be obtained by the laws of the State of Delaware with full power and authority Manager to own, lease or operate its assets and become a party to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect.
(iii) 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.
(iv) The Manager is not (a) in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligations, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be bound or affected except, in the case of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (A) any provision of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement, except such as have been obtained and made, are in effect;
1.7.10 No representation or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered warranty by the Manager and, assuming due authorization, execution and delivery of in this Agreement by MLVand no exhibit, is a legaldocument, valid and binding agreement of the Managerstatement, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium certificate or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV schedule furnished or to counsel for MLV be furnished to Southern Highlands pursuant to hereto, or in connection with this Agreement the transactions contemplated hereby, contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained herein or therein not misleading;
1.7.11 The Manager has inspected Parcel 305, has satisfied itself through its own due diligence efforts that Parcel 305 is suitable for development, and before the Contribution Date will have determined that the Parcel can be developed in accordance with the Development Budget;
1.7.12 The Manager will prepare and submit to Southern Highlands for its approval the Project Projections, the Development Budget, the Marketing Budget, the Marketing Material, and the Standard Sales Contact, before the Contribution Date;
1.7.13 The Project will be completed in a manner that is consistent with the Southern Highlands Master Planned Community standards, including landscaping standards, improvement standards and design standards, as incorporated in the Development Declaration;
1.7.14 The Manager shall be deemed at all times maintain all licenses, permits, insurance and bonds required for the Project, including any bonding necessary to be a representation enable the Company to distribute the Deposits to the Members; and
1.7.15 Manager will have reviewed and warranty by approved each of the Master Planned Criteria Documents before the Contribution Date. All of the representations and warranties of the Manager to MLV as to shall survive the matters set forth thereintermination of the Company.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents represents, warrants to and warrants toagrees with the Underwriters, that as of the date of this Agreement, as of each Representation Date on which a certificate is required to be delivered pursuant to Section 9.2 of this Agreement, and agrees with, MLV thatas of the Applicable Time:
(ia) The the Manager is a corporation has been duly incorporated and organized and is validly existing and in good standing under the laws of the State Province of Delaware with full Alberta and has all requisite corporate power and authority to own, lease or operate its assets and to conduct carry on its business as described in the Prospectus now conducted and to execute and deliver enter into this Agreement and to consummate carry out the transactions contemplated hereby and thereby.provisions hereof;
(iib) The the Manager is duly qualified or licensed by, and is in good standing in, each jurisdiction in which it currently conducts conducting its business or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, a Material Adverse Effect.
(iii) The Manager is all material respects in compliance with all applicable federal, state, local and foreign laws, rulesrules and regulations of each jurisdiction in which its business is carried on and is duly licensed, regulationsregistered or qualified in all jurisdictions in which it owns, ordersleases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, decrees leased and judgmentsoperated and all such licenses, including those relating registrations and qualifications are valid and subsisting and in good standing;
(c) except as referred to transactions with affiliatesin or contemplated by the Prospectuses, except where the failure subsequent to so comply could December 31, 2006, there has not reasonably be expected to have, individually or been any material change in the aggregatebusiness, business prospects, condition (financial or otherwise) or results of the operations of the Manager which would have a Material Adverse Effect.Effect on the Manager’s ability to perform its duties and functions under the Management Agreement, and the Manager has carried on business in the ordinary course; and
(ivd) The the Manager is not (a) in default or breach of, and the execution, delivery, performance and compliance of or with the terms of this Agreement by the Manager will not result in any breach of, or be in conflict with or constitute a default under (nor has any event occurred which with noticeunder, or create a state of facts which, after notice or lapse of time, or both both, would constitute a breach of, or default under), its articles any term or provision of incorporation or the constating documents, by-laws (collectivelyor resolutions of the Manager, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with noticecontract, lapse of time or both would constitute a breach or default) in the performance or observance of any of its obligationsagreement, agreementsinstrument, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument document to which the Manager is a party or by which it or its assets may be is bound or affected exceptany judgment, in decree, order, statute, rule or regulation applicable to the case of clause (b) onlyManager, for breaches and no term or defaults that could not reasonably be expected to have, individually or in provision thereof materially adversely affects the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (A) any provision ability of the Manager Charter Documents, (B) any of the Manager’s and any of its respective affiliates’ obligations under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order applicable to the Manager except, in the case of clauses (B) and (C) only, for such conflicts, breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vi) The Manager has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Manager is not in violation of, or in default under, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Manager, threatened against the Manager or any of its respective assets, and to the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, arbitration panel, authority or agency the adverse outcome of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ix) Since the date of the Prospectus, there has not been any event, circumstance or change to the Manager that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(x) The Manager and its subsidiaries, in the aggregate, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of the Manager) against such losses and risks and in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Date.
(xi) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(xiii) The Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or the rules and regulations thereunder, from performing perform its obligations under the Management Agreement as described in the Registration Statement and the ProspectusAgreement.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth therein.
Appears in 1 contract
Sources: Equity Distribution Agreement (Pengrowth Energy Trust)
Representations and Warranties of the Manager. The Manager represents and warrants towarrants, and agrees with, MLV the several Underwriters that:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in the aggregate, have a material adverse effect (a “Manager Material Adverse Effect”) on the performance by the Manager of its obligations under the Management Agreement.
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the performance by the Manager of the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the performance by the Manager of the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe General Disclosure Package and the Final Prospectus, body, arbitration panel, authority except where the failure to possess such authorizations or agency the adverse outcome of which could reasonably be expected to havemake such declarations and filings would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of any security of the Company to facilitate the sale or resale of the Offered Securities in violation of Regulation M under the Exchange Act.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of General Disclosure Package and the Final Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is a legal, valid and binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and legally binding agreement of the Manager Manager, enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations and except to the extent that enforcement thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in respect thereofa proceeding in equity or at law.
(xiiik) The Manager Subsequent to the respective dates as of which information is not prohibited by given in the Investment Advisers Act General Disclosure Package and the Final Prospectus (exclusive of 1940any amendments or supplements thereto subsequent to the date of this Agreement), as amendedthere has been no change, or the rules and regulations thereunderany development or event involving a prospective change, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
condition (xiv) Any certificate signed by an officer financial or otherwise), results of operations, business, properties or prospects of the Manager and delivered its Subsidiaries taken as a whole, that is material and adverse to MLV the Company or to counsel for MLV pursuant to or in connection with that would prevent the Manager from carrying out its obligations under this Agreement shall be deemed to be a representation and warranty by or the Manager to MLV as to the matters set forth thereinManagement Agreement.
Appears in 1 contract
Representations and Warranties of the Manager. The Manager represents and warrants to, and agrees with, MLV thatto the Underwriters as follows:
(ia) The Manager is a corporation has been duly organized and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to ownDelaware, lease or operate its assets and to conduct its business as described in the Prospectus and to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.
(ii) The Manager is duly qualified or licensed by, to do business and is in good standing in, in each jurisdiction in which it currently conducts its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which it owns is engaged, except where the failure to be so qualified or leases property in good standing or maintains an office and in which have such qualification power or licensing is necessary and in which the failureauthority would not, individually or in the aggregate, to be so qualified or licensed could have, individually or in have a material adverse effect on the aggregate, performance by the Manager of its obligations under the Management Agreement (a “Manager Material Adverse Effect”).
(iiib) The Manager is in compliance with has full right, power and authority to execute and deliver this Agreement, and all applicable federalaction required to be taken for the due and proper authorization, state, local execution and foreign laws, rules, regulations, orders, decrees delivery by it of this Agreement has been duly 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 Effectvalidly taken.
(ivc) This Agreement has been duly authorized, executed and delivered by the Manager.
(d) The execution, delivery and performance by the Manager is of this Agreement or the Management Agreement will not (ai) conflict with or result in a breach or violation of any of the terms or provisions of, or in constitute a default under (nor has any event occurred which with notice, lapse of timeunder, or both would constitute a breach of, or default under), its articles of incorporation or by-laws (collectively, the “Manager Charter Documents”) or (b) in breach or default (nor has any event occurred which with notice, lapse of time or both would constitute a breach or default) result in the performance creation or observance imposition of any lien, charge or encumbrance upon any property or assets of its obligationsthe Manager pursuant to, agreements, covenants or conditions contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Manager is a party or by which it or its assets may be the Manager is bound or affected except, in to which any of the case property or assets of clause (b) only, for breaches or defaults that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the execution, delivery and performance of this Agreement by the Manager will not conflict withis subject, or (ii) result in any breach violation of the provisions of the charter or constitute a default under (nor constitute any event which with notice, lapse of time, by-laws or both would constitute a breach of, or default under) (A) any provision similar organizational documents of the Manager Charter Documents, or (Biii) any of result in the Manager’s and any of its respective affiliates’ obligations under any provision violation of any licenselaw or statute or any judgment, indentureorder, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which any such party is a party or by which it or its assets may be bound or affected or (C) under any federal, state, local or foreign law, regulation or rule or regulation of any decreecourt or arbitrator or governmental or regulatory authority, judgment, permit or order applicable to the Manager except, in the case of clauses (Bi) and (Ciii) onlyabove, for any such conflictsconflict, breaches breach, violation, default, creation or defaults imposition that could not reasonably be expected to havewould not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ve) No consent, approval, authorization, consent order, license, registration or order qualification of or filing with any federal, state, local court or foreign arbitrator or governmental or regulatory commission, board, body, authority or agency is required for the execution, delivery and performance by the Manager of this Agreement or the Management Agreement, except such as have been obtained and made, or as may be required, under the Securities Act and the Exchange Act, under the rules and regulations of FINRA, and such as may be required under state or foreign securities laws.
(vif) The There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager has all necessary licensesis or may be a party or to which any property of the Manager is or may be the subject that, authorizationsif determined adversely to the Manager, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is being conducted at this time, and will obtain all necessary licenses, authorizations, consents and approvals and make all necessary filings required under any federal, state, local or foreign law, regulation or rule, and will obtain all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct its business as it is proposed to be conducted as described in the Prospectus except, in each case, where the failure to obtain any such license, authorization, consent or approval could not reasonably be expected to have, individually or in the aggregate, have a Manager Material Adverse Effect; the Manager is not in violation of, or in default underand no such investigations, any of its obligations under any such license, authorization, consent or approval of any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager except where such violation or default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(vii) No labor dispute with the employees of the Manager exists or, to the knowledge of the Manager, is imminent and the Manager is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers that, in any such case, might have a Material Adverse Effect.
(viii) There are no actions, suits, proceedings, inquiries suits or investigations pending orproceedings are, to the knowledge of the Manager, threatened against the in writing by any governmental or regulatory authority or others.
(g) The Manager or any of its respective assetssubsidiaries possess all material licenses, certificates, permits and other authorizations issued by, and to have made all material declarations and filings with, the knowledge of the Manager, its respective directors, officers or employees, at law or in equity, or before or by any appropriate federal, state, local or foreign governmental or regulatory commissionauthorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, boardthe Disclosure Package and the Prospectus, body, arbitration panel, authority except where the failure to possess or agency make the adverse outcome of which could reasonably be expected to havesame would not, individually or in the aggregate, reasonably be expected to have a Manager Material Adverse Effect.
(ixh) Since the date of the Prospectus, there The Manager has not been taken, directly or indirectly, any event, circumstance action designed to or change to the Manager that could reasonably be expected to have, individually cause or result in any stabilization or manipulation of the aggregate, a Material Adverse Effectprice of the Securities to facilitate the sale or resale of the Securities.
(xi) The Any financial or other data regarding the Manager and its subsidiaries, that is included in the aggregateRegistration Statement, carry or are covered by insurance (issued by insurers of recognized financial responsibility to the best knowledge of Disclosure Package and the Prospectus is derived from the Manager) against such losses ’s accounting or other applicable records and risks and is accurate in such amounts as are generally deemed adequate for the respective businesses in which they are engaged; neither the Manager nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Manager nor any of its subsidiaries has any reason to believe that the Manager or its subsidiaries would not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate have a Material Adverse Effect, except as described in or contemplated by the Prospectus. All such insurance is fully in force on the date hereof and will be fully in force at each Settlement Dateall material respects.
(xij) Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee or other person associated with or acting on behalf of the Manager has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, or other person charged with similar public or quasi-public duties from corporate funds; (iii) violated or is in violation of any provision of the FCPA; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; and the Manager and, to the knowledge of the Manager, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xii) This The Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery of this Agreement by MLV, is constitutes a legal, valid and legally binding agreement of the Manager, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Management Agreement has been duly authorized, executed and delivered by the Manager and, assuming due authorization, execution and delivery by such other parties, constitutes a legal, valid and binding agreement of the Manager enforceable against the Manager in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, to indemnity and by general principles of equity, and except to the extent that the indemnification provisions thereof contribution thereunder may be limited by federal or state securities laws and or principles of public policy considerations in respect thereof.
(xiii) The Manager is not prohibited and except to the extent that enforcement thereof may be limited by the Investment Advisers Act of 1940bankruptcy, as amendedfraudulent conveyance, or the rules insolvency, reorganization, moratorium and regulations thereunder, from performing its obligations under the Management Agreement as described in the Registration Statement and the Prospectus.
(xiv) Any certificate signed by an officer of the Manager and delivered to MLV or to counsel for MLV pursuant other laws relating to or affecting creditors’ rights or by general equitable principles, regardless whether enforcement is considered in connection with this Agreement shall be deemed to be a representation and warranty by the Manager to MLV as to the matters set forth thereinproceeding in equity or at law.
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)