Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows: (a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser. (b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). (c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles. (d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement. (e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading. (f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement. (g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus. (h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit. (i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations. (j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject. (k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser. (l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 3 contracts
Samples: Underwriting Agreement (Nuveen Quality Preferred Income Fund 3), Underwriting Agreement (Nuveen Quality Preferred Income Fund 2), Underwriting Agreement (Nuveen Quality Preferred Income Fund 2)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only jointly and not jointly or as to any other partyseverally, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation or limited liability company duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate or limited liability company, as the case may be, power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such AdviserAdviser (an "Adviser Material Adverse Effect").
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser), the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and Additional Compensation Agreement (in the Sub-Advisory Agreement have been duly and validly authorized by such case of the Investment Adviser; and this Agreement), the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser), the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and, assuming the due authorization, execution and delivery by the other parties thereto, such Additional Compensation Agreement (in the case of the Investment Adviser), Fund Agreements and Sub-Advisory Agreement constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principlesprinciples (regardless of whether enforcement is sought in a proceeding in equity or at law).
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser) and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) The description of such Adviser and its business, and the statements directly attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectusProspectus or Prepricing Prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of themthereto) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of an Adviser Material Adverse Effect with respect to such Adviser or that reasonably should should, if determined adversely with respect to such Adviser, have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder under the Additional Compensation Agreement (in the case of the Investment Adviser) or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(g) Since the date respective dates as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of Adviser Material Adverse Effect with respect to such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permitpermit , subject in each case to such qualification as may be set forth in the Prospectus (or any amendment or supplement thereto), except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, either individually or in the aggregate, does not or would not have an Adviser Material Adverse Effect.
(i) This Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser), the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser) or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (Ai) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over such Adviser (except such as may have been obtained or made prior to this Agreement and except for compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or the Certificate of Formation, as the case may be, By-Laws of such Adviser or the Limited Liability Company Agreement, as the case may be or (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except, in the case of clause (ii) above, for conflicts, breaches, defaults, violations or encumbrances that do not or would not have, either individually or in the aggregate, an Adviser Material Adverse Effect, or a material adverse effect on the Adviser's ability to perform its obligations under this Agreement, the Additional Compensation Agreement (in the case of the Investment Adviser) or the Fund Agreements to which it is a party.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site administered by such party or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit restrict access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Neuberger Berman Income Opportunity Fund Inc), Underwriting Agreement (Neuberger Berman Income Opportunity Fund Inc)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
(n) The Investment Adviser represents and warrants that Nuveen Investments, Inc. has executed a license agreement between Nuveen Investments, Inc. and Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., a New York corporation ("Standard & Poor's"), which agreement, when executed and delivered by Standard & Poor's, will license the use of the Standard & Poor's 500 Stock Index as a component of the Fund and the S&P trade name and trademark rights (the "S&P License Agreement"), and the S&P License Agreement has been duly and validly authorized by Nuveen Investments, Inc., and, upon delivery of the S&P License Agreement by Nuveen Investments Inc. and upon authorization, execution and delivery by Standard & Poor's, will constitute the valid and legally binding agreement of Nuveen Investments, Inc., enforceable against Nuveen Investments, Inc. in accordance with its terms, and subject to the qualification that the enforceability of Nuveen Investments, Inc.'s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(o) [NASDAQ-100 Index license agreement] [define "License Agreements"]
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen Equity Premium Opportunity Fund), Underwriting Agreement (Nuveen Equity Premium Advantage Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business (“Adviser Material Adverse Effect”). [The Subadviser is a subsidiary of the Investment Adviser. The Subadviser has no subsidiaries.]
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as an investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring Fee Agreement between the Investment Adviser and delivery ofXxxxxx Xxxxxxx & Co. LLC dated June [ ], 2013 and the performance by such Syndication Fee Agreement between the Investment Adviser of its obligations underand Xxxxxx Xxxxxxx & Co. LLC dated June [ ], this 2013 (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “[ ] Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “[ ] Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “ [ ] Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “[ ] Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “[ ] Fee Agreement”) and the Structuring Fee Agreement between the Investment Adviser and [ ] dated June [ ], 2013 (the “[ ] Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreements, the [ ] Fee Agreement, the Fund Agreements [ ] Fee Agreement, the [ ] Fee Agreement, the [ ] Fee Agreement, the [ ] Fee Agreement and the [ ] Fee Agreement are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company operating agreement and by-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (condition, financial or other)otherwise, or in the earnings, business, propertiesprospects, net assets properties or results of operations of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(hk) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; Neither such Adviser has fulfilled and performed all nor any of its material obligations with respect subsidiaries, affiliates, directors, managers, officers or employees, nor, to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment or giving of money, injunctionproperty, order gifts or decree anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Such Adviser represents that neither it nor any of its subsidiaries, any director, manager, officer, or will result in the creation employee thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement Such Adviser represents and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor covenants that it will it takenot, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In Such Adviser represents and covenants that, for the event past five years, it and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 2 contracts
Samples: Underwriting Agreement (Nuveen Flexible Investment Income Fund), Underwriting Agreement (Nuveen Flexible Investment Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Subadviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated July [ ], 2015 (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and RBC Capital Markets, LLC dated July [ ], 2015 (the “RBC Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxxx, Xxxxxxxx & Company, Incorporated dated July [ ], 2015 (the “Stifel Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Wedbush Securities Inc. dated July [ ], 2015 (the “Wedbush Fee Agreement”) and the performance by such Structuring Fee Agreement between the Investment Adviser of its obligations underand [ ] dated July [ ], this 2015 (the “[ ] Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreement, the Fund Agreements RBC Fee Agreement, the Stifel Fee Agreement, the Wedbush Fee Agreement and the [ ] Fee Agreement are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or By-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(hk) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; Neither such Adviser has fulfilled and performed all nor any of its material obligations with respect subsidiaries, affiliates, directors, managers, members, officers or employees, nor, to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment or giving of money, injunctionproperty, order gifts or decree anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen High Income 2020 Target Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Sub-Adviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Sub-Adviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated August [26], 2020 (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and BofA Securities, Inc. dated August [26], 2020 (the “BofA Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and UBS Securities LLC dated August [26], 2020 (the “UBS Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxx Fargo Securities, LLC dated August [26], 2020 (the “Xxxxx Fee Agreement”), the Fee Agreement between the Investment Adviser and Ameriprise Financial Services, LLC dated August [26], 2020 (the “Ameriprise Fee Agreement”), the Fee Agreement between the Investment Adviser and RBC Capital Markets, LLC dated August [26], 2020 (the “RBC Fee Agreement”) and the Fee Agreement between the Investment Adviser and Xxxxxx, Xxxxxxxx & Company, Incorporated dated August [26], 2020 (the “Stifel Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreement, the BofA Fee Agreement, the UBS Fee Agreement, the Xxxxx Fee Agreement, the Ameriprise Fee Agreement, the RBC Fee Agreement and the Stifel Fee Agreement are referred to herein, collectively, as the “Fee Agreements”, and the performance by such Adviser of its obligations under, this Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement and the Fee Agreements are referred to herein, collectively, as the “Adviser Agreements”) to which such Adviser is a party have been duly and validly authorized by such Adviser; and this Agreementauthorized, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or by-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which Neither such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions nor any of the 1940 Actits subsidiaries, the 1940 Act Rules and Regulationsaffiliates, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the executiondirectors, delivery managers, members, officers or performance of this Agreement or the Fund Agreements by employees, nor, to such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment, injunctiongiving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or decree to any person in violation of any applicable anti-corruption laws; (ii) such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) such Adviser will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five (5) years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Dynamic Municipal Opportunities Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser, the Sub-Adviser and the SubadviserOption Sub-Adviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing or has filed all affidavits and annual reports and paid all fees under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and such Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting as an investment adviser to the Fund under the Fund Agreements Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, as the case may be, to which it is a party for party, and is not prohibited from performing its obligations under the Fund or Citigroup Structuring Fee Agreement, the Sub-Advisory Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, to which it is a party, as contemplated by the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, to which it is a party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, have been duly executed and delivered by such Adviser and each such agreement, assuming due authorization, execution and delivery by the other parties thereto, constitute the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples (regardless of whether enforceability is considered in a proceeding in equity or at law).
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the Fund Agreements X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, to which it is a party and the Sub-Advisory Agreementparty.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, as the case may be, to which it is a party party, or under (iii) could reasonably be expected to have a material adverse effect on the Sub-Advisory Agreementcondition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), businessprospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its property and to conduct its business in the manner described in the Preliminary Prospectus and the Prospectus, except where such failure would not be reasonably expected to have a material adverse effect on such Adviser; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or Management Agreement, the Sub-Advisory Agreement, the Option Sub-Advisory Agreement, the Citigroup Structuring Fee Agreement, the Xxxxxxx Xxxxx Additional Compensation Agreement and the X.X. Xxxxxxx Structuring Fee Agreement, nor the consummation by the Fund or such Adviser of the transactions herein or therein contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (Bi) conflicts or will conflict with or constitutes or will constitute a breach of the organizational documents of such Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a material breach of or a material default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially (iii) violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and set forth in the Prospectus (and in any amendment or supplement thereto), Registration Statement under the heading “Underwriting,” such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof. Any certificate signed by any officer of the Adviser, the Sub-Adviser or the Option Sub-Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, Sub-Adviser or Option Sub-Adviser, as the case may be, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (ING Asia Pacific High Dividend Equity Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Floating Rate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, Spectrum and the SubadviserFroley, Revy, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement Agreements to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party.
(e) Such Adviser is not in violation of its Certificate of Incorporation, By-Laws or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement or the Sub-Advisory Agreements.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreements to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement Agreements to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or Articles of Incorporation, as applicable, or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Preferred Convertible Income Fund 2)
Representations and Warranties of the Advisers. Each of the Investment Adviser NAM, Santa Barbara and the SubadviserNWQ, severally as to itself only and not jointly or as to any other xxx xxxer party, represents and warrants to to, and agrees with, each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would does not have a material, material adverse effect on the condition (financial or other), business, properties, net assets properties or results of operations of such Adviser.
(b) Such Adviser NAM is duly registered as an investment adviser under the Advisers Act and the NAM is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Management Agreement, the New Management Agreements, the Subadvisory Agreements, and the New Subadvisory Agreements to which it and Santa Barbara is a party for duly registered as an investment adviser under the Fund Xxxxxxrs Act and Santa Barbara is not prohibited by the Advisers Act, the 1940 Act, xxx Xxxisers Act Rules and Regulations or the Sub-Advisory 1940 Act Rules and Regulations from acting under the Santa Barbara Subadvisory Agreement and the New Santa Barbara Subadxxxxxx Agreements and NWQ is duly registered as xx xxxxstment adviser under the Advisers Act and NWQ is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the NWQ Subadvisory Agreement and the New NWQ Subadvisory Agreements, as contemplated by the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser NAM has full power and authority to enter into this Agreement, the Fund Management Agreement, the New Management Agreements, the Subadvisory Agreements to which it is a party and the Sub-Advisory New Subadvisory Agreements and Santa Barbara has full power and authority to enter into this Agreement, the Santa Barbara Subadvisory Agreement and the New Santa Barbara Subadvisory Agreements and NWQ has full power and autxxxxxx to enter into this Agreement, the NWQ Subadvisory Agreement and the New NWQ Subadvisory Agreements; the execution and delivery of, and the performance by such Adviser NAM of its obligations under, this Agreement, the Fund Agreements to which it is a party Management Agreement and the Sub-Advisory Agreement Subadvisory Agreements have been duly and validly authorized by such AdviserNAM and the execution and delivery of, and the performance by Santa Barbara of its obligations under, this Agreement, the Santa Bxxxxxx Subadvisory Agreement and the New Santa Barbara Subadxxxxxx Agreements, have been duly and validly authorized by Santa Barbara and the execution and delivery of, and the performance xx XXQ of its obligations under, this Agreement, the NWQ Subadvisory Agreement and the New NWQ Subadvisory Agreements, have been duly and validly authorized by NWQ; and this Agreement, the Fund Agreements to which it is a party Management Agreement and the Sub-Advisory Agreement Subadvisory Agreements have been duly executed and delivered by NAM and this Agreement, the Santa Barbara Subadvisory Agreement and the NWQ Subadvisory Agreemexx xxxx been duly executed and delivered by Santa Barbara and NWQ, and each such agreement constitutes the valid xxx xegally binding agreement of such Adviser, enforceable against such Adviser in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles; once duly executed and delivered by the Fund and NAM, and, in the case of the New Investment Management Agreement, approved by the shareholders of the Fund, the New Management Agreements will constitute the valid and legally binding agreements of NAM, assuming due authorization, execution and delivery thereof by the other parties thereto, enforceable against NAM in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of NAM's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles; and, once duly executed and delivered by NAM, Santa Barbara and NWQ, and, in the case of the New Santa Barbara Inxxxxxxxt Subadvisory Agreement and the New NWQ Subaxxxxxxx Agreement, approved by the shareholders of the Fund, the New Subadvisory Agreements will constitute the valid and legally binding agreements of such Adviser, assuming due authorization, execution and delivery thereof by the other parties thereto, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement Agreement, the Management Agreement, the New Management Agreements, the Subadvisory Agreements and the Fund Agreements to which it is a party and the Sub-Advisory AgreementNew Subadvisory Agreements, as applicable.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Management Agreement, the New Management Agreements, the Subadvisory Agreements or the New Subadvisory Agreements, as applicable or (iii) could reasonably be expected to which it is have a party material adverse effect on the condition (financial or under otherwise), business prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the Sub-Advisory Agreementordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), businessbusiness prospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in each Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the manner described aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Management Agreement, the New Management Agreements, the Subadvisory Agreements to which such Adviser is a party and the Sub-Advisory Agreement New Subadvisory Agreements comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the New Management Agreements, the Subadvisory Agreements and the New Subadvisory Agreements, except such as have been made or obtained under the Act and the 1940 Act, the rules and regulations of the NASD and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Management Agreement, the New Management Agreement, the Subadvisory Agreement and the New Subadvisory Agreements by such Adviser which is a party thereto nor the consummation of the transactions herein or the Sub-Advisory Agreementtherein contemplated, nor the consummation by such Adviser fulfillment of the transactions contemplated hereby terms hereof or thereby (A) requires any consentthereof, approvalconflict with, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default underviolation of, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such any Adviser pursuant to to, (i) the Organizational Documents of such Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it such Adviser is a party or by which it may be bound or to which its property is subject, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Adviser or any of the property or assets of such Adviser is subjectits properties.
(kl) Except as stated in this Agreement and as described in the Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in or which will constituteviolation of federal securities laws, in stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax-Advantaged Dividend Growth Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the SubadviserSub-Adviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such The Adviser is duly registered as an investment adviser under the Advisers Act and the Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or Management Agreement, the Sub-Advisory Agreement and the Fee Agreements, and the Sub-Adviser is duly registered as an investment adviser under the Advisers Act and the Sub-Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act rules and Regulations from acting under the Sub-Advisory Agreement, as contemplated by the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such The Adviser has full power and authority to enter into this Agreement, the Fund Agreements Management Agreement, the Sub-Advisory Agreement and the Fee Agreements, and the Sub-Adviser has full power and authority to which it is a party enter into this Agreement and the Sub-Advisory Agreement, ; the execution and delivery of, and the performance by such the Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory Agreement and the Fee Agreements have been duly and validly authorized by such the Adviser and the execution and delivery of, and the performance by the Sub-Adviser of its obligations under, this Agreement and the Sub-Advisory Agreement, have been duly and validly authorized by the Sub-Adviser; and this Agreement, the Fund Management Agreement, the Sub-Advisory Agreement and the Fee Agreements to which it is a party have been duly executed and delivered by the Adviser and this Agreement and the Sub-Advisory Agreement have been duly executed and delivered by the Sub-Adviser, and each such Adviser and constitute agreement constitutes the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples (regardless of whether enforceability is considered in a proceeding in equity or at law).
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement and Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory AgreementAgreement and the Fee Agreements, as applicable.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or Statement, each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under Management Agreement, the Sub-Advisory AgreementAgreement and the Fee Agreements or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or otherotherwise), businessprospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its property and to conduct its business in the manner described in the Registration Statement, each Preliminary Prospectus and the Prospectus, except where such failure would not be reasonably expected to have a material adverse effect on such Adviser; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and Management Agreement, the Sub-Advisory Agreement and the Fee Agreements comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Sub-Advisory Agreement and the Fee Agreements, except such as have been made or obtained under the Act, the Exchange Act, the 1940 Act, the Advisers Act, the rules and regulations of FINRA and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Registration Statement, each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or Management Agreement, the Sub-Advisory Agreement, Agreement and the Fee Agreements nor the consummation by the Fund or such Adviser of the transactions herein or therein contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (Bi) conflicts or will conflict with or constitutes or will constitute a breach of the organizational documents of such Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a material breach of or a material default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially (iii) violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and set forth in the Prospectus (and in any amendment or supplement thereto), Registration Statement under the heading “Underwriting,” such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain maintain, or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof.
(n) The operations of each such Adviser and its subsidiaries are and have been conducted at all times in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of such Adviser, threatened.
(o) Such Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement and the Sub-Advisory Agreement, as applicable, are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (ING Infrastructure, Industrials & Materials Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the SubadviserSub-Adviser, severally as to itself only and not jointly or as to any other party, represents and warrants to to, and agrees with, each Underwriter as follows:
(a) Such Adviser has been duly formed, is a corporation duly organized and validly existing in good standing and has a legal existence under the laws of its jurisdiction the State of incorporationDelaware, with full corporate limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Final Prospectus and the Prospectus (and any amendment or supplement to either of them) Final Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would does not have a material, material adverse effect on the condition (financial or otherotherwise), businessbusiness prospects, propertiesearnings, net assets business or results of operations properties of such Adviser, whether or not arising in the ordinary course of business of such Adviser (an “Adviser Material Adverse Effect.”).
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and such Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or Advisory Agreement and the Sub-Advisory Agreement Agreement, to which such Adviser is a party, as contemplated by the Registration Statement Statement, each Preliminary Final Prospectus and the Prospectus (or any amendment or supplement thereto)Final Prospectus.
(c) Such Adviser has full limited liability company power and authority to enter into this Agreement, the Fund Agreements to which it is a party Advisory Agreement and the Sub-Advisory Agreement, to which such Adviser is a party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party Advisory Agreement and the Sub-Advisory Agreement Agreement, to which such Adviser is a party, have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party Advisory Agreement and the Sub-Advisory Agreement Agreement, to which such Adviser is a party, have been duly executed and delivered by such Adviser; and, assuming due authorization, execution and delivery thereof by the other parties thereto, each of the Advisory Agreement and the Sub- Advisory Agreement, to which such Adviser and constitute is a party, constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder thereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws (whether statutory or decisional) relating to or affecting creditors' ’ rights generally and by general equitable principlesprinciples (regardless of whether enforcement is sought in a proceeding in equity or at law).
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, each Preliminary Final Prospectus and the Final Prospectus (or any amendment or supplement thereto) and under this Agreement, the Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement, to which such Adviser is a party.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Final Prospectus and the Final Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or the Statement, each Preliminary Final Prospectus (or any amendment or supplement to either of them) but are and Final Prospectus that is not so described as required or that required, (ii) would reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party Advisory Agreement or under the Sub-Advisory Agreement, to which such Adviser is a party, or (iii) would reasonably be expected to have an Adviser Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, each Preliminary Final Prospectus and Final Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Final Prospectus and Final Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date respective dates as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or otherotherwise), businessbusiness prospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Registration Statement, each Preliminary Final Prospectus and Final Prospectus.
(h) Such Adviser has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, except where the failure to possess such license, certificate, permit and other authorization individually or in the manner described in the Prospectus; aggregate would not have an Adviser Material Adverse Effect, and such Adviser has fulfilled and performed all its material obligations with respect not received any notice of proceedings relating to such permits and no event has occurred which allows, or after notice or lapse of time would allow, the revocation or termination thereof or results in any other material impairment modification of the rights of such Adviser under any such permitlicense, certificate, permit or authorization which, singly or in the aggregate, would reasonably be expected to have an Adviser Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, each Preliminary Final Prospectus and Final Prospectus.
(i) This No consent, approval, authorization, filing with or order of any court or governmental agency or body is required on behalf of such Adviser in connection with the transactions contemplated herein or in the Advisory Agreement and the Sub-Advisory Agreement, to which such Adviser is a party, except (i) such as have been made or obtained under the Fund Agreements Act, the 1940 Act, the Exchange Act, the Advisers Act, and (ii) such as have been made or obtained or such as may be required by the rules and regulations of FINRA and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Registration Statement, each Preliminary Final Prospectus and Final Prospectus, and such as which the failure to obtain would not have an Adviser Material Adverse Effect.
(j) This Agreement and the Advisory Agreement and the Sub-Advisory Agreement to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement, the Advisory Agreement or the Fund Agreements by such Adviser which is a party thereto or and the Sub-Advisory Agreement, to which such Adviser is a party, nor the consummation by such Adviser of the transactions contemplated hereby herein or thereby (A) requires any consenttherein contemplated, approval, authorization or other order of or registration or filing with nor the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements fulfillment of the NASD Division of Corporate Financeterms hereof or thereof, (i) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws Organizational Documents of such Adviser or Adviser, (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, under any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound bound, or materially (iii) violates or will materially violate any material statute, law, regulation or filing or rule, regulation, judgment, injunction, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties or will result properties; except in the creation case of clauses (ii) and (iii), for such conflicts, breaches, defaults or imposition of any material lien, charge violations that individually or encumbrance upon any property or assets of such in the aggregate would not have an Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.Material Adverse Effect
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in or which will constituteviolation of federal securities laws, in stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser, except for such actions as taken by Underwriters that are affiliates of such Adviser and transactions under the Dividend Reinvestment Plan, so long as such actions are in material compliance with all applicable law.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an such Adviser’s Internet web site or similar electronic means, such Adviser will install and maintain or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof.
(n) The operations of such Adviser and its subsidiaries are conducted in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(o) Such Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Advisory Agreement and the Sub-Advisory Agreement, as applicable, are executed in accordance with its management’s general or specific authorization; and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization.
(p) Neither such Adviser nor, to the knowledge of such Adviser, any director, officer, agent, employee or affiliate of such Adviser is aware of or has taken any action in connection with such Adviser, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and such Adviser conducts its business in compliance with the FCPA.
(q) Neither such Adviser nor, to the knowledge of such Adviser, any director, officer, agent, employee or affiliate of such Adviser is currently subject to any U.S. sanctions administered by OFAC; and such Adviser will not directly or indirectly cause the Fund to knowingly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Any certificate signed by any officer of an Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Guggenheim Strategic Opportunities Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents represent and warrants warrant to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with Delaware. Such Adviser has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full corporate power and authority under Delaware law to enter into this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement, party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and, assuming the due authorization, execution and delivery by the other parties thereto, constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles, whether enforcement is considered in a proceeding in equity or at law.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreementparty.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill perform its obligations hereunder or under the Fund Agreements Advisory Agreement to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, not occurred any event which should reasonably be expected to have a material adverse change in effect on the condition (financial or other), business, properties, net assets or results of operations or business prospects ability of such Adviser, whether or not arising from Adviser to perform its obligations under this Agreement and the ordinary course of business and (B) there have been no transactions entered into by such Adviser Advisory Agreement to which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectusit is a party.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the ProspectusProspectus and any amendment or supplement thereto, except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement or the Advisory Agreement to which it is a party; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit, except where the revocation, termination or impairment of such Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement or the Advisory Agreement to which it is a party.
(i) This Agreement, Agreement and each of the Fund Agreements Management Agreement and the Sub-Advisory Agreement to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance by such Adviser of this Agreement or the Fund Agreements by Advisory Agreement to which such Adviser which is a party thereto or the Sub-Advisory Agreementparty, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires receipt by the Advisers of any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over such Adviser (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Regulation Inc. Corporate FinanceFinancing Department) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate articles of Incorporation incorporation, by-laws or By-Laws other organizational documents, as applicable, of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement and the Advisory Agreement to which it is a party.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, constitute stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such AdviserAdviser who are not underwriters or dealers participating in the offering of the shares.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Aim Select Real Estate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, Spectrum and the SubadviserFroley, Revy, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Each Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) ), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, qualification except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser.
(b) Such Each Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; each Adviser has fulfilled and performed all its respective material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any permit.
(c) Each Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund Investment Management Agreement or the Sub-Advisory Agreement Agreements for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, to the best of such Adviser's knowledge after reasonable investigation, or any facts or circumstances the existence of which could lead to any proceeding that would reasonably be expected to adversely affect the registration of such Adviser as an investment adviser with the Commission.
(cd) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser, or to which such Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), but are not described as required or that would reasonably be expected to involve a prospective material adverse change in the condition (financial or other), business, prospects, properties, assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreements or under the Fund Agreements to which it is a party.
(e) Each Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreements or under the Fund Agreements to which it is a party.
(f) Neither the execution, delivery or performance of this Agreement, the Sub-Advisory Agreements or the Fund Agreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or made prior to the date hereof) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the corporate charter or by-laws, or other organizational documents, of such Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default would not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or result of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except where such conflict, breach, default or violation would not have a material adverse effect on the condition (financial or otherwise), prospects, business, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party. Such Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement and the Fund Agreements to which it is a party.
(g) Each Adviser has full power and authority to enter into this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; , and this Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute each constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(dh) Such Each Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(ei) The description of such Adviser and Adviser, its business, business and the statements attributable to such Adviser, Adviser in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a prospectus, in light of the circumstances under which they were made) , not misleading.
(fj) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described Except as disclosed in the Registration Statement or and the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on subsequent to the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date respective dates as of which such information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated thereinsuch Adviser has not incurred any liability or obligation, (A) direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to such Adviser or the Fund and that is required to be disclosed by the 1933 Act, the 1940 Act or the Rules and Regulations in the Registration Statement or the Prospectus and there has not been no materialany material adverse change, or any development involving or which would reasonably be expected to involve, a prospective material adverse change change, in the condition (financial or other), business, prospects, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of business, or which, in each case, could have a material adverse effect on the ability of such Adviser to perform its business as described in obligations under this Agreement, the ProspectusSub-Advisory Agreements and the Fund Agreements to which it is a party.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ik) This Agreement, the Fund Agreements to which such each Adviser is a party and the Sub-Advisory Agreement Agreements to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes the Advisers make available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Preferred Convertible Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Sub-Adviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Sub-Adviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated [ ], 2018 (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and [ ] dated [ ], 2018 (the performance by such Adviser of its obligations under, this “[ ] Fee Agreement”)….(the Xxxxxx Xxxxxxx Fee Agreement, the Fund Agreements [ ] Fee Agreement are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or By-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which Neither such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions nor any of the 1940 Actits subsidiaries, the 1940 Act Rules and Regulationsaffiliates, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the executiondirectors, delivery managers, members, officers or performance of this Agreement or the Fund Agreements by employees, nor, to such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment, injunctiongiving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or decree to any person in violation of any applicable anti-corruption laws; (ii) such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) such Adviser will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen High Income 2023 Target Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction the state or country of incorporation, as the case may be, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business as a foreign corporation and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, ; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate or articles of formation or organization, limited liability company agreement or other organizational documents, as the case may be, or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Fund Agreements to which it is a party or the Sub-Advisory Agreement.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (therein, in the case of a prospectus, in light of the circumstances under which they were made) , not misleading.
(fg) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or the Preliminary Prospectus (or any amendment or supplement to either of them) but are and Prospectus that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, properties, net assets or results of operations of the Fund or business prospects (other than as a result of a change in the financial markets generally) of the Fund, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(gh) Since the date as of which information is given in the Registration Statement Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, prospects, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Preliminary Prospectus and the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Preliminary Prospectus and the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement, except such as have been made or obtained under the Act, the 1940 Act, and such as may be required under the Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated herein and in the Preliminary Prospectus and in the Prospectus.
(l) Neither the execution, delivery or performance of this Agreement or Agreement, the Fund Agreements by to which such Adviser which is a party thereto or and the Sub-Advisory Agreement, nor the consummation by the Fund or such Adviser of the transactions herein or therein contemplated hereby or thereby (Ai) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws organizational documents of such Adviser or Adviser, (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or (iii) materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(km) Except as stated in this Agreement and in the Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Shares, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(ln) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Real Estate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the SubadviserSubadvisers, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction state of incorporationorganization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would not have a material, material adverse effect on the condition (financial or otherotherwise), businessprospects, propertiesearnings, net assets business or results properties of operations of such the Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under under: (i) the Fund Agreements to which it is a party for the Fund Management Agreement or the Administration Agreement, with respect to the Adviser; (ii) the applicable Sub-Advisory Agreement Agreement, with respect to the Adviser, Parametric and Rampart; (iii) the Additional Compensation Agreement, with respect to the Adviser; or
(iv) the Structuring Fee Agreement, with respect to the Adviser; as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser has full power and authority to enter into into: (i) this Agreement, with respect to the Fund Agreements to which it is a party Adviser, Parametric and Rampart; (ii) the Management Agreement and the Administration Agreement, with respect to the Adviser; (iii) the applicable Sub-Advisory Agreement, with respect to the Adviser, Parametric and Rampart; and (iv) the Additional Compensation Agreement and the Structuring Fee Agreement, with respect to the Adviser. The execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement under such agreements have been duly and validly authorized by such Adviser; . This Agreement (with respect to the Adviser, Parametric and this AgreementRampart), the Fund Agreements Management Agreement (with respect to which it is a party and the Adviser), the Administration Agreement (with respect to the Adviser), the applicable Sub-Advisory Agreement (with respect to the Adviser, Parametric and Rampart), the Additional Compensation Agreement (with respect to the Adviser) and the Structuring Fee Agreement (with respect to the Adviser) have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement, the Administration Agreement, the applicable Sub-Advisory Agreement, the Additional Compensation Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Structuring Fee Agreement.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against that (i) could reasonably be expected to have a material adverse effect on the ability of such Adviser to fulfill its obligations (A) hereunder, with respect to the Adviser, Parametric and Rampart; or under (B) the Management Agreement and the Administration Agreement, with respect to which the Adviser; (C) the applicable Sub-Advisory Agreement, with respect to the Adviser, Parametric and Rampart; or (D) the Additional Compensation Agreement or the Structuring Fee Agreement, with respect to the Adviser; or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any of its properties is subjectsupplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to such Adviser that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementRules and Regulations.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities authorities, if any ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ih) This Agreement, the Fund Agreements to which such Adviser is a party and Management Agreement, the Administration Agreement, the Sub-Advisory Agreements, the Additional Compensation Agreement and the Structuring Fee Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated (i) herein, with respect to the Adviser, Parametric and Rampart; or in (ii) the Management Agreement or the Administration Agreement, with respect to the Adviser; (iii) the applicable Sub-Advisory Agreement, with respect to the Adviser, Parametric and Rampart; or (iv) the Additional Compensation Agreement or the Structuring Fee Agreement, with respect to the Adviser; except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Prospectus, compliance with the NYSE rules and the filing requirements of the Division of Corporate Finance of the NASD.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or Management Agreement, the Administration Agreement, the Sub-Advisory Agreements, the Additional Compensation Agreement and the Structuring Fee Agreement, nor the consummation by the Fund or such Adviser of the transactions herein or therein contemplated hereby or thereby (Ai) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of the charter or a default under, the Certificate declaration of Incorporation trust or Byby-Laws laws of such Adviser or Adviser, (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially (iii) violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser, except for Securities repurchases in accordance with the 1940 Act and the 1940 Act Rules and Regulations or the issuance or purchase of Common Shares pursuant to the Dividend Reinvestment Plan.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Tax-Managed Buy-Write Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only jointly and not jointly or as to any other partyseverally, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation or limited liability company duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate or limited liability company, as the case may be, power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of themthereto) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such AdviserAdviser (an "Adviser Material Adverse Effect").
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and, assuming the due authorization, execution and delivery by the other parties thereto, such Fund Agreements and Sub-Advisory Agreement constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principlesprinciples (regardless of whether enforcement is sought in a proceeding in equity or at law).
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Additional Compensation Agreement dated June 24, 2003 among the Investment Adviser and certain underwriters party thereto (in the case of the Investment Adviser) and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) The description of such Adviser and its business, and the statements directly attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectusProspectus or Prepricing Prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of themthereto) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of an Adviser Material Adverse Effect with respect to such Adviser or that reasonably should should, if determined adversely with respect to such Adviser, have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(g) Since the date respective dates as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of Adviser Material Adverse Effect with respect to such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permitpermit , subject in each case to such qualification as may be set forth in the Prospectus (or any amendment or supplement thereto), except where the failure to obtain or perform its obligations with respect to such permits, or the restrictions set forth in such permits, either individually or in the aggregate, does not or would not have an Adviser Material Adverse Effect.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (Ai) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over such Adviser (except such as may have been obtained or made prior to this Agreement and except for compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or the Certificate of Formation, as the case may be, By-Laws of such Adviser or the Limited Liability Company Agreement, as the case may be or (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except, in the case of clause (ii) above, for conflicts, breaches, defaults, violations or encumbrances that do not or would not have, either individually or in the aggregate, an Adviser Material Adverse Effect, or a material adverse effect on the Adviser's ability to perform its obligations under this Agreement or the Fund Agreements to which it is a party.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Preferred Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site administered by such party or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit restrict access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Neuberger Berman Income Opportunity Fund Inc)
Representations and Warranties of the Advisers. Each of the Investment Adviser NAM, Santa Xxxxxxx and the SubadviserNWQ, severally as to itself only and not jointly or as to any other party, represents and warrants to to, and agrees with, each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would does not have a material, material adverse effect on the condition (financial or other), business, properties, net assets properties or results of operations of such Adviser.
(b) Such Adviser NAM is duly registered as an investment adviser under the Advisers Act and the NAM is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Management Agreement, the Subadvisory Agreements to which it and the Structuring Fee Agreements and the Santa Xxxxxxx is a party for duly registered as an investment adviser under the Fund Advisers Act and Santa Xxxxxxx is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the Sub-Advisory 1940 Act Rules and Regulations from acting under the Santa Xxxxxxx Subadvisory Agreement and NWQ is duly registered as an investment adviser under the Advisers Act and NWQ is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the NWQ Subadvisory Agreement, as contemplated by the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser NAM has full power and authority to enter into this Agreement, the Fund Management Agreement, the Subadvisory Agreements, the Structuring Fee Agreements and Santa Xxxxxxx has full power and authority to which it is a party enter into this Agreement and the Sub-Advisory Santa Xxxxxxx Subadvisory Agreement and NWQ has full power and authority to enter into this Agreement and the NWQ Subadvisory Agreement, ; the execution and delivery of, and the performance by such Adviser NAM of its obligations under, this Agreement, the Fund Management Agreement, the Subadvisory Agreements to which it is a party and the Sub-Advisory Agreement Structuring Fee Agreements have been duly and validly authorized by such AdviserNAM and the execution and delivery of, and the performance by Santa Xxxxxxx of its obligations under, this Agreement and the Santa Xxxxxxx Subadvisory Agreement, have been duly and validly authorized by Santa Xxxxxxx and the execution and delivery of, and the performance by NWQ of its obligations under, this Agreement and the NWQ Subadvisory Agreement, have been duly and validly authorized by NWQ; and this Agreement, the Fund Management Agreement, the Subadvisory Agreements to which it is a party and the Sub-Advisory Structuring Fee Agreements have been duly executed and delivered by NAM and this Agreement, the Santa Xxxxxxx Subadvisory Agreement and the NWQ Subadvisory Agreement have been duly executed and delivered by Santa Xxxxxxx and NWQ, and each such Adviser and constitute agreement constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement Agreement, the Management Agreement, the Subadvisory Agreements and the Fund Agreements to which it is a party and the Sub-Advisory AgreementStructuring Fee Agreements, as applicable.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Management Agreement, the Subadvisory Agreements and the Structuring Fee Agreements, as applicable or (iii) could reasonably be expected to which it is have a party material adverse effect on the condition (financial or under otherwise), business prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the Sub-Advisory Agreementordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus; and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), businessbusiness prospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in each Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the manner described aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Management Agreement, the Subadvisory Agreements to which such Adviser is a party and the Sub-Advisory Agreement Structuring Fee Agreements comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Subadvisory Agreements and the Structuring Fee Agreements, except such as have been made or obtained under the Act and the 1940 Act, the rules and regulations of the NASD and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Management Agreement, the Subadvisory Agreement and the Structuring Fee Agreements by such Adviser which is a party thereto nor the consummation of the transactions herein or the Sub-Advisory Agreementtherein contemplated, nor the consummation by such Adviser fulfillment of the transactions contemplated hereby terms hereof or thereby (A) requires any consentthereof, approvalconflict with, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected result in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default underviolation of, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such any Adviser pursuant to to, (i) the Organizational Documents of such Adviser, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it such Adviser is a party or by which it may be bound or to which its property is subject, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Adviser or any of the property or assets of such Adviser is subjectits properties.
(kl) Except as stated in this Agreement and as described in the Preliminary Prospectus (and in any amendment or supplement thereto)the Prospectus, and except with respect to transactions under the Dividend Reinvestment Plan, such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in or which will constituteviolation of federal securities laws, in stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain or will cause to be installed and maintained, pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax-Advantaged Dividend Growth Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, Spectrum and the SubadviserFroley, Revy, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement Agreements to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreements to which it is a party.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement Agreements to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or Articles of Incorporation, as applicable, or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Preferred Convertible Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a corporation, in the case of the Investment Adviser and as a limited liability company, in the case of the Subadviser, each in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business (“Adviser Material Adverse Effect”). The Subadviser is a subsidiary of the Investment Adviser. The Subadviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as an investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring Fee Agreement between the Investment Adviser and delivery ofXxxxxx Xxxxxxx & Co. LLC dated December [ ], 2012 and the performance by such Syndication Fee Agreement between the Investment Adviser of its obligations underand Xxxxxx Xxxxxxx & Co. LLC dated December [ ], this 2012 (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Investment Adviser and Citigroup Global Markets Inc. dated December [ ], 2012 (the “Citi Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated dated December [ ], 2012 (the “Xxxxxxx Xxxxx Fee Agreement”) and the Structuring Fee Agreement between the Investment Adviser and UBS Securities LLC dated December [ ], 2012 (the “UBS Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreements, the Citi Fee Agreement, the Fund Agreements Xxxxxxx Xxxxx Fee Agreement and the UBS Fee Agreement are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the charter and by-laws, in the case of the Investment Adviser, or the limited liability company operating agreement and by-laws, in the case of the Subadviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (condition, financial or other)otherwise, or in the earnings, business, propertiesprospects, net assets properties or results of operations of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(hk) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; Neither such Adviser has fulfilled and performed all nor any of its material obligations with respect subsidiaries, affiliates, directors, officers or employees, nor, to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment or giving of money, injunctionproperty, order gifts or decree anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Such Adviser represents that neither it nor any of its subsidiaries, any director, officer, or will result in the creation employee thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement Such Adviser represents and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor covenants that it will it takenot, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In Such Adviser represents and covenants that, for the event past five years, it and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Intermediate Duration Municipal Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement, party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary ornecessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, Agreement and each of the Fund Agreements Management Agreement and the Sub-Advisory Agreement to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreementthereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Quality Preferred Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgxxxx xx xonnection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Floating Rate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Subadviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated May [ ], and 2016 (the performance by such Adviser of its obligations under“Xxxxxx Xxxxxxx Fee Agreement”), this [[Others] (the Xxxxxx Xxxxxxx Fee Agreement, the Fund Agreements [Other Agreements]] are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or By-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which Neither such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions nor any of the 1940 Actits subsidiaries, the 1940 Act Rules and Regulationsaffiliates, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the executiondirectors, delivery managers, members, officers or performance of this Agreement or the Fund Agreements by employees, nor, to such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment, injunctiongiving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or decree to any person in violation of any applicable anti-corruption laws; (ii) such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) such Adviser will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen High Income December 2019 Target Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, BIM and the SubadviserBIMI, severally as to itself only and not jointly or as to any other party, represents and warrants to to, and agrees with, each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure to so to register or to qualify would does not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations ability of such Adviser to perform its obligations under the Management Agreement(s) to which it is a party or, with respect to the Adviser, the Additional Compensation Agreements.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and such Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements Management Agreement(s) to which it is a party for or, with respect to the Fund or Adviser, the Sub-Advisory Agreement Additional Compensation Agreements, as contemplated by the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements Management Agreement(s) to which it is a party and and, with respect to the Sub-Advisory AgreementAdviser, the Additional Compensation Agreements; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements Management Agreement(s) to which it is a party and and, with respect to the Sub-Advisory Agreement Adviser, the Additional Compensation Agreements have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements Management Agreement(s) to which it such Adviser is a party and and, with respect to the Sub-Advisory Agreement Adviser, the Additional Compensation Agreements have been duly executed and delivered by such Adviser Adviser; and constitute each such agreement constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement and Agreement, the Fund Agreements Management Agreement(s) to which it is a party and and, with respect to the Sub-Advisory AgreementAdviser, the Additional Compensation Agreements.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements Management Agreement(s) to which it is a party or, with respect to the Adviser, the Additional Compensation Agreements or under (iii) could reasonably be expected to have an Adviser Material Adverse Effect, except as set forth in or contemplated in each Preliminary Prospectus and the Sub-Advisory AgreementProspectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business Adviser Material Adverse Effect and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in each Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the manner described aggregate, if the subject of an unfavorable decision, ruling or finding, would have an Adviser Material Adverse Effect, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse Prospectus (exclusive of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permitsupplement thereto).
(i) This Agreement, the Fund Agreements Management Agreement(s) to which such Adviser is a party and and, with respect to the Sub-Advisory Agreement Adviser, the Additional Compensation Agreements comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement(s) to which such Adviser is a party or, with respect to the Adviser, the Additional Compensation Agreements, except such as have been made or obtained under the Act and the 1940 Act, the rules and regulations of the FINRA and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by Management Agreement(s) to which such Adviser which is a party thereto or or, with respect to the Sub-Advisory AgreementAdviser, the Additional Compensation Agreements, nor the consummation by such Adviser of the transactions contemplated hereby herein or thereby therein contemplated, (Ai) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes a breach or will constitute violation of the organizational documents of such Adviser, (ii) conflicts with or constitutes a material breach of or a material default underunder any indenture, the Certificate contract, lease, mortgage, deed of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default undertrust, any material note agreement, indenture, lease loan agreement or other agreement, obligation, condition, covenant or instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially to which its property is subject, or (iii) violates or will materially violate any material statute, law, rule, regulation or filing or judgment, injunction, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof.
(n) The operations of each such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of such Adviser, threatened Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock EcoSolutions Investment Trust)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, NWQ, Security Capital, Wellington and the SubadviserSymphony, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement Agreements to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material, adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement or the Sub-Advisory Agreements.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) (specifically, in the case of Security Capital, the Security Capital Information (as defined below) and, in the case of Wellington, the Wellington Information (as defined below), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreements to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement Agreements to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Diversified Dividend & Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Equity Premium Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Each Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) ), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, qualification except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser.
(b) Such Each Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; each Adviser has fulfilled and performed all its respective material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any permit.
(c) Each Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund Investment Management Agreement or the Sub-Advisory Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, to the best of such Adviser's knowledge after reasonable investigation, or any facts or circumstances the existence of which could lead to any proceeding which would reasonably be expected to adversely affect the registration of such Adviser as an investment adviser with the Commission.
(cd) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser, or to which such Adviser or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), but are not described as required or that would reasonably be expected to involve a prospective material adverse change in the condition (financial or other), business, prospects, properties, assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement or under the Fund Agreements to which it is a party.
(e) Such Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement or under the Fund Agreements to which it is a party.
(f) Neither the execution, delivery or performance of this Agreement, the Sub-Advisory Agreement or the Fund Agreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or made prior to the date hereof) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the corporate charter or by-laws, or other organizational documents, of such Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default would not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or result of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except where such conflict, breach, default or violation would not have a material adverse effect on the condition (financial or otherwise), prospects, business, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party. Such Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement and the Fund Agreements to which it is a party.
(g) Such Adviser has full power and authority to enter into this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; , and this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute each constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(dh) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(ei) The description of such Adviser and Adviser, its business, business and the statements attributable to such Adviser, Adviser in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(fj) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described Except as disclosed in the Registration Statement or and the Prospectus (or any amendment or supplement to either of them) but are ), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), such Adviser has not described as incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to such Adviser or the Fund and that is required to be disclosed by the 1933 Act, the 1940 Act or that the Rules and Regulations in the Registration Statement or the Prospectus and there has not been any material adverse change, or any development involving or which would reasonably should be expected to result in any materialinvolve, a prospective material adverse change change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser Adviser, whether or that reasonably should not arising in the ordinary course of business, or which, in each case, could have a material, material adverse effect on the ability of such Adviser to fulfill perform its obligations hereunder or under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subjectparty.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes the Advisers make available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Quality Preferred Income Fund 3)
Representations and Warranties of the Advisers. Each of the Investment ---------------------------------------------- Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreement to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreement by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Floating Rate Income Opportunity Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, NWQ, and the SubadviserSymphony, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation corporation, limited liability company or limited liability partnership duly organized and validly existing in good standing under the laws of its jurisdiction of incorporationincorporation or formation, with full corporate corporate, company or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement Agreements to which it is a party as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party, the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement Agreements to which it is a party have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory AgreementAgreements to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or other organizational documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith to which it is subject, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body except where such violation or breach would not have a material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of the such Adviser or on the ability of the such Adviser to perform its obligations under this Agreement, the Management Agreement to which it is a party or the Sub-Advisory Agreements to which it is a party.
(f) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto), in each case insofar as such information is set forth in the Registration Statement or the Prospectus) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(fg) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory AgreementAgreements to which it is a party.
(gh) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (Ai) there has been no material, material adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(hi) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ij) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement Agreements to which it is a party comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(jk) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory AgreementAgreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate certificate or articles of Incorporation incorporation, by-laws, certificate of formation, limited liability company agreement, limited liability partnership agreement or By-Laws other organizational documents of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, in each case under its control or at its direction, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Tax Advantaged Total Return Strategy Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Sub-Adviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Sub-Adviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated [ ], 2019 (the “Xxxxxx Xxxxxxx Fee Agreement”) . . . and the performance by such Structuring Fee Agreement between the Investment Adviser of its obligations underand [ ] dated [ ], this 2019 (the “[ ] Fee Agreement”), (the Xxxxxx Xxxxxxx Fee Agreement . . . and the [ ] Fee Agreement are referred to herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or by-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which Neither such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions nor any of the 1940 Actits subsidiaries, the 1940 Act Rules and Regulationsaffiliates, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the executiondirectors, delivery managers, members, officers or performance of this Agreement or the Fund Agreements by employees, nor, to such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment, injunctiongiving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or decree to any person in violation of any applicable anti-corruption laws; (ii) such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) such Adviser will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five (5) years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Municipal Credit Opportunities Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction the State of incorporationDelaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement, party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, Agreement and each of the Fund Agreements Management Agreement and the Sub-Advisory Agreement to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreementthereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws laws of such Adviser or (B) conflicts 15 or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Real Estate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Subadviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated [ ], 2015 (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxx Fargo Securities, LLC dated [ ], 2015 (the performance by such Adviser of its obligations under“Xxxxx Fee Agreement”), this [Others] (the Xxxxxx Xxxxxxx Fee Agreement, the Fund Agreements Xxxxx Fee Agreement [Others] are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”)]1 to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or By-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement. 1 To be updated.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(hk) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; Neither such Adviser has fulfilled and performed all nor any of its material obligations with respect subsidiaries, affiliates, directors, managers, members, officers or employees, nor, to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment or giving of money, injunctionproperty, order gifts or decree anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen High Income December 2018 Target Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the SubadviserSub-Adviser, severally as to itself only and not jointly or as to any other party, represents and warrants to to, and agrees with, each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such The Investment Adviser is duly registered as an investment adviser under the Advisers Act and the Investment Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the ________ Additional Compensation Agreement, and the Sub-Adviser is duly registered as an investment adviser under the Advisers Act and the Sub-Adviser is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act rules and Regulations from acting under the Sub-Advisory Agreement, as contemplated by the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such The Investment Adviser has full power and authority to enter into this Agreement, the Fund Agreements Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the ________ Additional Compensation Agreement and the Sub-Adviser has full power and authority to which it is a party enter into this Agreement and the Sub-Advisory Agreement, ; the execution and delivery of, and the performance by such the Investment Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the _______ Additional Compensation Agreement have been duly and validly authorized by such the Investment Adviser and the execution and delivery of, and the performance by the Sub-Adviser of its obligations under, this Agreement and the Sub-Advisory Agreement, have been duly and validly authorized by the Sub-Adviser; and this Agreement, the Fund Agreements to which it is a party Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the _______ Additional Compensation Agreement have been duly executed and delivered by the Investment Adviser and this Agreement and the Sub-Advisory Agreement have been duly executed and delivered by the Sub-Adviser, and each such Adviser and constitute agreement constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement each Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement and Agreement, the Fund Agreements to which it is a party and Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement and the ______ Additional Compensation Agreement, as applicable.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or each Preliminary Prospectus and the Prospectus (or any amendment or supplement to either of them) but are that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the ______ Additional Compensation Agreement, as applicable or (iii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases, permits or other instruments relating to such Adviser that are required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(g) Since the date as of which information is given in the Registration Statement each Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them)Prospectus, except as otherwise stated therein, (Ai) there has been no material, adverse change in the condition (financial or other), businessprospects, propertiesearnings, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (Bii) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in each Preliminary Prospectus and the Prospectus.
(h) Such Adviser has such possesses all licenses, certificates, permits and other authorizations of governmental issued by the appropriate federal, state or foreign regulatory authorities ("permits") as are necessary to own its property and to conduct its business business, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the manner described aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of such Adviser, whether or not arising from transactions in the Prospectus; such Adviser has fulfilled ordinary course of business, except as set forth in or contemplated in each Preliminary Prospectus and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse the Prospectus (exclusive of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permitsupplement thereto).
(i) This Agreement, the Fund Agreements to which such Adviser is a party and Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the _______ Additional Compensation Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the _______ Additional Compensation Agreement, except such as have been made or obtained under the Act and the 1940 Act, the Exchange Act, the Advisers Act, the rules and regulations of the NASD and the NYSE, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in each Preliminary Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee Agreement and the _______ Additional Compensation Agreement, as applicable, nor the consummation by such Adviser of the transactions contemplated hereby herein or thereby (A) requires any consenttherein contemplated, approval, authorization or other order of or registration or filing with nor the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements fulfillment of the NASD Division of Corporate Finance) terms hereof or conflicts or will thereof, conflict with or constitutes or will constitute with, result in a breach of or a default underviolation of, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such either Adviser pursuant to to, (i) the organizational documents of such Adviser, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it such Adviser is a party or by which it may be bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to such Adviser of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Adviser or any of the property or assets of such Adviser is subjectits properties.
(kl) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Such Adviser has not taken and nor will it taketaken, directly or indirectly, any action designed to or which should that would constitute or that might reasonably be expected to cause or result in in, under the Exchange Act or which will constituteotherwise, stabilization or manipulation of the price of any security of the Common Shares in violation Fund to facilitate the sale or resale of federal securities laws the Securities, and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(lm) In the event that the Fund or such Adviser makes available any promotional materials related to the Securities or the transactions contemplated hereby intended for use only by qualified registered broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified registered broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Eaton Vance Risk-Managed Diversified Equity Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, party represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is a corporation duly organized and validly existing in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement to either of them) Prospectus, and is duly registered and qualified to conduct do business as a foreign limited partnership and is in good standing in under the laws of each jurisdiction or place where the nature of its properties or conduct of its business which requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund under the Management Agreement or the Sub-Advisory Agreement as contemplated by the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto)Prospectus.
(c) Such Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party Management Agreement and the Sub-Advisory Agreement, and the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Fund Agreements to which it is a party Management Agreement and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, the Fund Agreements to which it is a party Management Agreement and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' ’ rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Management Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(f) There are no legal No action, suit or proceeding by or before any court or governmental proceedings agency, authority or body or any arbitrator involving such Adviser or its property is pending or, to the best knowledge of such Adviser, threatened against such Adviser or to which any of its properties that (i) is subject, that are required to be described in the Registration Statement or the Preliminary Prospectus (or any amendment or supplement to either of them) but are and Prospectus that is not so described as required or that required, (ii) could reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, material adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under Management Agreement and the Sub-Advisory Agreement.
, or (giii) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement could reasonably be expected to either of them), except as otherwise stated therein, (A) there has been no material, have a material adverse change in effect on the condition (financial or otherotherwise), businessearnings, properties, net assets business or results of operations or business prospects properties of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business business, except as set forth in or contemplated in the Preliminary Prospectus and Prospectus (exclusive of any supplement thereto); and there are no agreements, contracts, indentures, leases or other instruments relating to such Adviser that are required to be described in the ProspectusRegistration Statement, the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act, the 1940 Act or the Rules and Regulations.
(hg) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("“permits"”) as are necessary to own its property and to conduct its business in the manner described in the Preliminary Prospectus and the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(ih) This Agreement, the Fund Agreements to which such Adviser is a party Management Agreement and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Management Agreement and the Sub-Advisory Agreement, except such as have been made or obtained under the Act, the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Preliminary Prospectus and the Prospectus.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or Management Agreement and the Sub-Advisory Agreement, nor the consummation by the Fund or such Adviser of the transactions herein or therein contemplated hereby or thereby (Ai) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws organizational documents of such Adviser or Adviser, (Bii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially (iii) violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it such Adviser is a party or by which it such Adviser may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof. Any certificate signed by any officer of such Adviser and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Adviser, as to matters covered therein, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents represent and warrants warrant to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with Delaware. Such Adviser has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct business and is in good standing in each jurisdiction or place where the nature of its properties or conduct of its business requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Sub-Advisory Agreement as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full corporate power and authority under Delaware law to enter into this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement, party; the execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreement, Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreement have been duly executed and delivered by such Adviser and, assuming the due authorization, execution and delivery by the other parties thereto, constitute the valid and legally binding agreements of such Adviser, enforceable against such Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles, whether enforcement is considered in a proceeding in equity or at law.
(d) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement and the Fund Advisory Agreements to which it is a party and the Sub-Advisory Agreementparty.
(e) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other), business, properties, net assets or results of operations of such Adviser or that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill perform its obligations hereunder or under the Fund Agreements Advisory Agreement to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, not occurred any event which should reasonably be expected to have a material adverse change in effect on the condition (financial or other), business, properties, net assets or results of operations or business prospects ability of such Adviser, whether or not arising from Adviser to perform its obligations under this Agreement and the ordinary course of business and (B) there have been no transactions entered into by such Adviser Advisory Agreement to which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.it is a party..
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the ProspectusProspectus and any amendment or supplement thereto, except to the extent that the failure to so have should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement or the Advisory Agreement to which it is a party; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit, except where the revocation, termination or impairment of such Adviser's rights under such permits should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement or the Advisory Agreement to which it is a party.
(i) This Agreement, Agreement and each of the Fund Agreements Management Agreement and the Sub-Advisory Agreement to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance by such Adviser of this Agreement or the Fund Agreements by Advisory Agreement to which such Adviser which is a party thereto or the Sub-Advisory Agreementparty, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires receipt by the Advisers of any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official having jurisdiction over such Adviser (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Regulation Inc. Corporate FinanceFinancing Department) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate articles of Incorporation incorporation, by-laws or By-Laws other organizational documents, as applicable, of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except in any case under clause (A) or (B) as should not reasonably be expected to have a material adverse effect on the ability of such Adviser to perform its obligations under this Agreement and the Advisory Agreement to which it is a party.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, constitute stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such AdviserAdviser who are not underwriters or dealers participating in the offering of the shares.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Aim Select Real Estate Income Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a corporation, in the case of the Investment Adviser and as a limited liability company, in the case of the Subadviser, each in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where the failure so to register or to qualify would not have a material, adverse effect on the condition (financial or other), business, properties, net assets or results of operations of such Adviser. Such Adviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as an investment adviser to which it is a party for the Fund as contemplated by the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting as the Subadviser under the Sub-Advisory Agreement as contemplated Agreement, in the case of the Subadviser, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Registration Statement and the Prospectus (or any amendment or supplement thereto)Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring Fee Agreement between the Investment Adviser and delivery ofXxxxxx Xxxxxxx & Co. LLC dated April [—], 2012 and the performance Syndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated April [—], 2012 (the “Xxxxxx Xxxxxxx Fee Agreements”), the Structuring Fee Agreement between the Investment Adviser and [other agreements executed by such Adviser of its obligations underany Adviser] dated April [—], this 2012 (the “[other agreements] Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreements and the [other agreements executed by any Adviser]) are referred to herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the operating agreement, in the case of the Adviser, or the limited liability partnership agreement, in the case of the Subadviser, or by-laws of such Adviser or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under the Adviser Agreements to which it is a party, except such as have been obtained and as may be required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Underwriting Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under this Agreement and by the Fund Adviser Agreements to which it is a party .
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is not in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal has not occurred any material adverse change, or governmental proceedings pending orany development involving a prospective material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement condition, financial or the Prospectus (otherwise, or any amendment or supplement to either of them) but are not described as required or that reasonably should be expected to result in any material, adverse change in the condition (financial or other)earnings, business, propertiesprospects, net assets properties or results of operations of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(hk) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; Neither such Adviser has fulfilled and performed all nor any of its material obligations with respect subsidiaries or affiliates, director, officer, employees, nor, to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment or giving of money, injunctionproperty, order gifts or decree anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Such Adviser represents that neither it nor any of its subsidiaries, any director, officer, or will result in the creation employee thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by an Adviser Person that is: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement Such Adviser represents and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor covenants that it will it takenot, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In Such Adviser represents and covenants that, for the event past five (5) years, it and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Real Asset Income & Growth Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Each Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) ), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, qualification except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund Investment Management Agreement or the Sub-Advisory Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, to the best of such Adviser's knowledge after reasonable investigation, or any facts or circumstances the existence of which could lead to any proceeding which would reasonably be expected to adversely affect the registration of such Adviser as an investment adviser with the Commission.
(c) Such There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser, or to which such Adviser has full power and authority or any of its properties is subject, that are required to enter into be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), but are not described as required or that would reasonably be expected to involve a prospective material adverse change in the condition (financial or other), business, prospects, properties, assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement or under the Fund Agreements to which it is a party.
(d) Such Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body.
(e) Neither the execution, delivery or performance of this Agreement, the Sub-Advisory Agreement or the Fund Agreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or made prior to the date hereof) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the corporate charter or by-laws, or other organizational documents, of such Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default would not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or result of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except where such conflict, breach, default or violation would not have a material adverse effect on the condition (financial or otherwise), prospects, business, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory AgreementAgreement and the Fund Agreements to which it is a party. Such Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement and the Fund Agreements to which it is a party.
(f) The execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; , and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement and the Fund Agreements have been duly executed and delivered by such Adviser and constitute each constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(dg) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(eh) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(fi) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described Except as disclosed in the Registration Statement or and the Prospectus (or any amendment or supplement to either of them) but are ), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), such Adviser has not described as incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to such Adviser or the Fund and that is required to be disclosed by the 1933 Act, the 1940 Act or that the Rules and Regulations in the Registration Statement or the Prospectus and there has not been any material adverse change, or any development involving or which would reasonably should be expected to result in any materialinvolve, a prospective material adverse change change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser Adviser, whether or that reasonably should not arising in the ordinary course of business, or which, in each case, could have a material, material adverse effect on the ability of such Adviser to fulfill perform its obligations hereunder or under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Quality Preferred Income Fund 2)
Representations and Warranties of the Advisers. Each of the Investment Adviser Adviser, jointly and the Subadviser, severally as to itself only and not jointly or as to any other partyseverally, represents and warrants to and agrees with each Underwriter of the Underwriters as followsof the date hereof that:
(a) Such Adviser has been duly organized, is a corporation duly organized and validly existing as a limited liability company in good standing under the laws of its the jurisdiction of incorporationits organization, with full corporate has the power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (and any amendment or supplement to either of them) and is duly registered and qualified to conduct transact business and is in good standing in each jurisdiction or place where in which the nature of its properties or conduct of its business or its ownership or leasing of property requires such registration or qualification, except where to the extent that the failure to be so to register qualified or to qualify be in good standing (i) would not reasonably be expected to have a material, material adverse effect on such Adviser’s performance of this Agreement or the consummation of any of the transactions herein contemplated or (ii) would not reasonably be expected to have a material adverse effect on the condition (financial or otherotherwise), prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Adviser Material Adverse Effect”). The Subadviser has no subsidiaries.
(b) Such Adviser is duly registered as an investment adviser under the Advisers Act Act, and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Investment Company Act Rules and Regulations from acting under the Fund Agreements Investment Management Agreement as the investment adviser to which it is a party for the Fund as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus, in the case of the Investment Adviser, or from acting under the Sub-Advisory Agreement as the subadviser to the Fund as contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (Prospectus, in the case of the Subadviser, and no order of suspension or any amendment revocation of such registration has been issued or supplement thereto)proceedings therefor initiated or, to the knowledge of such Adviser, threatened by the Commission.
(c) Such Adviser has full power This Agreement and authority to enter into this each of the Investment Management Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement, the execution Structuring and delivery ofSyndication Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxx & Co. LLC dated May 10, 2016 (the “Xxxxxx Xxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and RBC Capital Markets, LLC dated May 10, 2016 (the “RBC Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxxx, Xxxxxxxx & Company, Incorporated dated May 10, 2016 (the “Stifel Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Wedbush Securities Inc. dated May 10, 2016 (the “Wedbush Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and BB&T Capital Markets, a division of BB&T Securities, LLC dated May 10, 2016 (the “BB&T Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and X.X. Xxxxxxxx & Co. dated May 10, 2016 (the “Davidson Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxxx Xxxxxxxxxx Xxxxx LLC dated May 10, 2016 (the “Janney Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Ladenburg Xxxxxxxx & Co. Inc. dated May 10, 2016 (the “Ladenburg Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Pershing LLC dated May 10, 2016 (the “Pershing Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Hilltop Securities Inc. dated May 10, 2016 (the “Hilltop Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Xxxxxxxxxx Securities, Inc. dated May 10, 2016 (the “Xxxxxxxxxx Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Maxim Group LLC dated May 10, 2016 (the “Maxim Fee Agreement”), the Structuring Fee Agreement between the Investment Adviser and Newbridge Securities Corporation dated May 10, 2016 (the “Newbridge Fee Agreement”) and the performance by such Structuring Fee Agreement between the Investment Adviser of its obligations underand Synovus Securities, this Inc. dated May 10, 2016 (the “Synovus Fee Agreement”) (the Xxxxxx Xxxxxxx Fee Agreement, the Fund Agreements RBC Fee Agreement, the Stifel Fee Agreement, the Wedbush Fee Agreement, the BB&T Fee Agreement, the Davidson Fee Agreement, the Janney Fee Agreement, the Ladenburg Fee Agreement, the Pershing Fee Agreement, the Hilltop Fee Agreement, the Xxxxxxxxxx Fee Agreement, the Maxim Fee Agreement, the Newbridge Fee Agreement and the Synovus Fee Agreement are referred to which it is a party herein, collectively, as the “Fee Agreements” and the Investment Management Agreement, the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; and this Agreementthe Fee Agreements are referred to herein, collectively, as the Fund Agreements “Adviser Agreements”) to which it such Adviser is a party and the Sub-Advisory Agreement have has been duly authorized, executed and delivered by such Adviser. Each of this Agreement and the Adviser Agreements to which such Adviser is a party complies with all applicable provisions of the Acts, the Advisers Act and constitute the applicable Rules and Regulations. Each of the Adviser Agreements to which such Adviser is a party is a valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's ’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws relating to or affecting creditors' ’ rights generally and by equitable principles of general equitable principlesapplicability.
(d) The execution and delivery by such Adviser of, and the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party will not contravene (i) any provision of applicable law or (ii) the limited liability company agreement or By-laws of such Adviser, or (iii) any agreement or other instrument binding upon such Adviser that is material to such Adviser or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Adviser, whether foreign or domestic. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by such Adviser of its obligations under this Agreement and the Adviser Agreements to which it is a party, except such as have been obtained as required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or as may be required by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement.
(e) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened to which such Adviser is a party or to which any of the properties of such Adviser is subject (i) other than proceedings accurately described in all material respects in the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or in the aggregate, have an Adviser Material Adverse Effect, or a material adverse effect on the power or ability of such Adviser to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents applicable to such Adviser that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) Such Adviser has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have an Adviser Material Adverse Effect or a Fund Material Adverse Effect.
(g) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto) and under by this Agreement and the Fund Adviser Agreements to which it is a party party.
(h) The Investment Management Agreement and the Sub-Advisory AgreementAgreement to which such Adviser is a party are in full force and effect and neither the Fund nor any such Adviser is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default by such Adviser under such document.
(ei) The All information furnished by such Adviser for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of such Adviser and its businessAdviser, does not, and on the statements attributable to such AdviserClosing Date will not, in the Registration Statement and the Prospectus (and contain any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading (in the case of a prospectusthe Time of Sale Prospectus and Prospectus, in light of the circumstances under which they were such statement was made) not misleading).
(fj) There are no legal or governmental proceedings pending orhas not occurred any material adverse change, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or development that could reasonably should be expected to result in any materiala material adverse change, adverse change in the condition (financial or other)otherwise) or in the prospects, earnings, business, properties, net assets operations or results of operations properties of such Adviser or from that reasonably should have a material, adverse effect on the ability of such Adviser to fulfill its obligations hereunder or under the Fund Agreements to which it is a party or under the Sub-Advisory Agreement.
(g) Since the date as of which information is given set forth in the Registration Statement Time of Sale Prospectus, and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which Neither such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions nor any of the 1940 Actits subsidiaries, the 1940 Act Rules and Regulationsaffiliates, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the executiondirectors, delivery managers, members, officers or performance of this Agreement or the Fund Agreements by employees, nor, to such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASDAdviser’s knowledge, any state securities commission, any national securities exchange, any arbitrator, any court agent or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws representative of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound subsidiaries or materially violates affiliates, has taken or will materially violate take any material statuteaction in furtherance of an offer, lawpayment, regulation promise to pay, or filing authorization or judgmentapproval of the payment, injunctiongiving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or decree to any person in violation of any applicable anti-corruption laws; (ii) such Adviser and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) such Adviser will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(l) The operations of such Adviser and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Adviser or any of its properties subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Adviser, threatened.
(i) Neither Adviser nor any of its subsidiaries, any directors, managers, members, officers or will result in the creation employees thereof, nor, to such Adviser’s knowledge, any agent, affiliate or imposition of any material lien, charge or encumbrance upon any property or assets representative of such Adviser pursuant to or any of its subsidiaries, is an individual or entity (“Adviser Person”) that is, or is owned or controlled by one or more Adviser Persons that are: (A) the terms subject of any agreement Sanctions, nor (B) located, organized or instrument to which it resident in a country or territory that is a party or by which it may be bound or to which any the subject of the property or assets of such Adviser is subjectSanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(kii) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Neither Adviser has not taken and nor will it takewill, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any action designed subsidiary, joint venture partner or other Adviser Person: (A) to fund or which should reasonably be expected to cause facilitate any activities or business of or with any Adviser Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in or which will constitute, stabilization or manipulation of the price of the Common Shares in a violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken Sanctions by any affiliates of such AdviserAdviser Person (including any Adviser Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(liii) In For the event past five years, each Adviser and its subsidiaries have not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Adviser Person, or in any country or territory, that at the Fund time of the dealing or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means transaction is or was the subject of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereofSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen High Income December 2019 Target Term Fund)
Representations and Warranties of the Advisers. Each of the Investment Adviser and the Subadviser, severally as to itself only and not jointly or as to any other party, represents and warrants to each Underwriter that, as followsof the date hereof or at such other time or times identified below:
(a) Such Each Adviser is a corporation duly organized and validly existing in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement to either of them) ), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, qualification except where the failure so to register or to qualify would not have a material, material adverse effect on the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund Investment Management Agreement or the Sub-Advisory Agreement for the Fund as contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding, to the best of such Adviser's knowledge after reasonable investigation, or any facts or circumstances the existence of which could lead to any proceeding which would reasonably be expected to adversely affect the registration of such Adviser as an investment adviser with the Commission.
(c) Such There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser, or to which such Adviser has full power and authority or any of its properties is subject, that are required to enter into be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them), but are not described as required or that would reasonably be expected to involve a prospective material adverse change in the condition (financial or other), business, prospects, properties, assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement or under the Fund Agreements to which it is a party.
(d) Such Adviser is not in violation of its corporate charter or by-laws, or other organizational documents, in default under any material agreement, indenture or instrument or in breach or violation of any judgment, decree, order, rule or regulation of any court or governmental or self-regulatory agency or body.
(e) Neither the execution, delivery or performance of this Agreement, the Sub-Advisory Agreement or the Fund Agreements by such Adviser which is a party thereto, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires such Adviser to obtain any consent, approval, authorization or other order of or registration or filing with, the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or made prior to the date hereof) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the corporate charter or by-laws, or other organizational documents, of such Adviser, except where the failure to obtain such consent, approval, authorization or other order of, or make such registration or filing, or such conflict, breach or default would not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or result of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject, except where such conflict, breach, default or violation would not have a material adverse effect on the condition (financial or otherwise), prospects, business, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement, the Sub-Advisory AgreementAgreement and the Fund Agreements to which it is a party. Such Adviser is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency, except such orders which do not have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net assets or results of operations of such Adviser or on the ability of such Adviser to perform its obligations under this Agreement and the Fund Agreements to which it is a party.
(f) The execution and delivery of, and the performance by such Adviser of its obligations under, this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreement have been duly and validly authorized by such Adviser; , and this Agreement, the Fund Agreements to which it is a party and the Sub-Advisory Agreement and the Fund Agreements have been duly executed and delivered by such Adviser and constitute each constitutes the valid and legally binding agreements agreement of such Adviser, enforceable against such Adviser in accordance with their its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of such Adviser's obligations hereunder and thereunder may be limited by to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(dg) Such Adviser has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement and the Prospectus (or any amendment or supplement thereto) and under this Agreement, the Sub-Advisory Agreement and the Fund Agreements to which it is a party and the Sub-Advisory Agreementparty.
(eh) The description of such Adviser and its business, and the statements attributable to such Adviser, in the Registration Statement and the Prospectus (and any amendment or supplement thereto) complied and comply in all material respects with the provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectustherein, in light of the circumstances under which they were made) , not misleading.
(fi) There are no legal or governmental proceedings pending or, to the knowledge of such Adviser, threatened against such Adviser or to which any of its properties is subject, that are required to be described Except as disclosed in the Registration Statement or and the Prospectus (or any amendment or supplement to either of them) but are ), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or any amendment or supplement to either of them), such Adviser has not described as incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to such Adviser or the Fund and that is required to be disclosed by the 1933 Act, the 1940 Act or that the Rules and Regulations in the Registration Statement or the Prospectus and there has not been any material adverse change, or any development involving or which would reasonably should be expected to result in any materialinvolve, a prospective material adverse change change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of such Adviser Adviser, whether or that reasonably should not arising in the ordinary course of business, or which, in each case, could have a material, material adverse effect on the ability of such Adviser to fulfill perform its obligations hereunder or under this Agreement, the Sub-Advisory Agreements and the Fund Agreements to which it is a party or under the Sub-Advisory Agreementparty.
(g) Since the date as of which information is given in the Registration Statement and the Prospectus (and any amendment or supplement to either of them), except as otherwise stated therein, (A) there has been no material, adverse change in the condition (financial or other), business, properties, net assets or results of operations or business prospects of such Adviser, whether or not arising from the ordinary course of business and (B) there have been no transactions entered into by such Adviser which are material to such Adviser other than those in the ordinary course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its property and to conduct its business in the manner described in the Prospectus; such Adviser has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of such Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which such Adviser is a party and the Sub-Advisory Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement or the Fund Agreements by such Adviser which is a party thereto or the Sub-Advisory Agreement, nor the consummation by such Adviser of the transactions contemplated hereby or thereby (A) requires any consent, approval, authorization or other order of or registration or filing with the Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official (except compliance with the securities or Blue Sky laws of various jurisdictions which have been or will be effected in accordance with this Agreement and except for compliance with the filing requirements of the NASD Division of Corporate Finance) or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the Certificate of Incorporation or By-Laws of such Adviser or (B) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which such Adviser is a party or by which it or any of its properties may be bound or materially violates or will materially violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Adviser or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in any amendment or supplement thereto), such Adviser has not taken and nor will it take, directly or indirectly, any action designed to or which should reasonably be expected to cause or result in or which will constitute, stabilization or manipulation of the price of the Common Shares in violation of federal securities laws and such Adviser is not aware of any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any promotional materials intended for use only by qualified broker-dealers and registered representatives thereof by means of an Internet web site or similar electronic means, such Adviser will install and maintain pre-qualification and password-protection or similar procedures which are reasonably designed to effectively prohibit access to such promotional materials by persons other than qualified broker-dealers and registered representatives thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Quality Preferred Income Fund)
