Auction Preferred Shares
ALLIANCE CALIFORNIA MUNICIPAL INCOME FUND, INC.
1,620 Shares, Series M
1,620 Shares, Series T
Liquidation Preference $25,000 Per Share
UNDERWRITING AGREEMENT
March 22, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
UBS Warburg LLC
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Alliance California Municipal Income Fund,
Inc., a Maryland corporation (the "Fund"), and Alliance Capital
Management L.P., a Delaware limited partnership (the "Manager"),
address you as Underwriters and as the representatives of each of
the other persons, firms and corporations, if any, listed in
Schedule I hereto (herein collectively called "Underwriters").
The Fund proposes to issue and sell an aggregate of 1,620 shares
of its Auction Preferred Shares, Series M and 1,620 shares of its
Auction Preferred Shares, Series T, each $.001 par value per
share, with a liquidation preference of $25,000 per share (the
"Shares"), to the several Underwriters. The Shares will be
authorized by, and subject to the terms and conditions of, the
Articles Supplementary of the Fund (the "Articles Supplementary")
in the form filed as an exhibit to the Registration Statement
referred to in Section 1 of this agreement.
The Fund and the Manager wish to confirm as follows their
agreements with you and the other several Underwriters on whose
behalf you are acting in connection with the several purchases of
the Shares by the Underwriters.
The Fund has entered into an investment management agreement
with the Manager dated January 28, 2002, a custody agreement with
State Street Bank & Trust Company dated January 24, 2002, a
shareholder transfer agency agreement with Equiserve Trust
Company, N.A. dated January 28, 2002, and is entering into an
Auction Agency Agreement with The Bank of New York, and such
agreements are herein referred to as the "Management Agreement",
the "Custodian Agreement", the "Transfer Agency Agreement" and
the "Auction Agency Agreement", respectively. Collectively, the
Management Agreement, the Custodian Agreement, Transfer Agency
Agreement and Auction Agency Agreement are herein referred to as
the "Fund Agreements". This Underwriting Agreement is herein
referred to as the "Agreement".
1. Registration Statement and Prospectus.
The Fund has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended (the "1933
Act"), the Investment Company Act of 1940, as amended (the "1940
Act"), and the rules and regulations of the Commission under the
1933 Act (the "1933 Act Rules and Regulations") and the 1940 Act
(the "1940 Act Rules and Regulations" and together with the 1933
Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File No. 333-82898) under the
1933 Act and the 1940 Act and may pursuant to the Rules and
Regulations prepare and file an additional registration statement
relating to a portion of the Shares pursuant to Rule 462(b) of
the 1933 Act Rules and Regulations (collectively, the
"registration statement"), including a prospectus (including any
statement of additional information) relating to the Shares and a
notification of registration of the Fund as an investment company
under the 1940 Act on Form N-8A (the "1940 Act Notification").
The term "Registration Statement" as used in this Agreement means
the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the
1933 Act or, if the registration statement became effective under
the 1933 Act prior to the execution of this Agreement, as amended
or supplemented prior to the execution of this Agreement and
includes any information deemed to be included by Rule 430A under
the 1933 Act Rules and Regulations. If it is contemplated, at
the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed under the
1933 Act and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as
used in this Agreement means the registration statement as
amended by said post-effective amendment. The term "Prospectus"
as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the
Registration Statement or, if the prospectus (including the
statement of additional information) included in the Registration
Statement omits information in reliance on Rule 430A and such
information is included in a prospectus (including the statement
of additional information) filed with the Commission pursuant to
Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus
(including the statement of additional information) in the form
included in the Registration Statement as supplemented by the
addition of the information contained in the prospectus
(including the statement of additional information) filed with
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the Commission pursuant to Rule 497(h). The term "Prepricing
Prospectus" as used in this Agreement means the prospectus
(including the statement of additional information) subject to
completion in the form included in the registration statement at
the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of
additional information) shall have been amended from time to time
prior to the date of the Prospectus, together with any other
prospectus (including any other statement of additional
information) relating to the Fund other than the Prospectus.
The Fund has furnished the Underwriters with copies of such
registration statement, each amendment to such registration
statement filed with the Commission and each Prepricing
Prospectus.
2. Agreements to Sell and Purchase.
The Fund hereby agrees, subject to all the terms and
conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations,
warranties and agreements of the Fund and the Manager herein
contained and subject to all of the other terms and conditions
set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Fund at a purchase price per share
of $24,750 per Share, the number of Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of
Shares increased as set forth in Section 10 hereof).
3. Terms of Public Offering.
The Fund and the Manager have been advised by you that the
Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Shares upon the
terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the
Fund for the Shares and payment of all amounts due to the
Underwriters under Section 12 hereof shall be made at the
office of Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of the
Depository Trust Company or another mutually agreeable
facility, at 9:00 A.M., New York City time, on March 27, 2002
(the "Closing Date"). The place of closing for the Shares and
the Closing Date may be varied by agreement between you and
the Fund.
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(b) Certificates in definitive form representing the
Shares registered in the name of Cede & Co., as nominee for
the Depository Trust Company, shall be delivered by or on
behalf of the Fund to the Depository Trust Company for the
account of the Underwriters on the Closing Date.
5. Agreements of the Fund and the Manager.
The Fund and the Manager (for such time as the Manager is
acting as the investment manager to the Fund), jointly and
severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or
a post-effective amendment thereto to be declared effective
under the 1933 Act before the offering of the Shares may
commence, the Fund will use its reasonable best efforts to
cause the Registration Statement or such post-effective
amendment to become effective under the 1933 Act as soon as
possible. If the Registration Statement has become effective
and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule
430A of the 1933 Act Rules and Regulations, the Fund will
file a prospectus including such information pursuant to Rule
497(h) of the 1933 Act Rules and Regulations, as promptly as
practicable, but no later than the second business day
following the earlier of the date of the determination of the
offering price of the Shares or the date the Prospectus is
first used after the effective date of the Registration
Statement. If the Registration Statement has become effective
and the Prospectus contained therein does not so omit such
information, the Fund will file a Prospectus or a
certification pursuant to Rule 497 (c) or (j), as applicable,
of the 1933 Act Rules and Regulations as promptly as
practicable, but no later than the fifth business day
following the date of the later of the effective date of the
Registration Statement or the commencement of the public
offering of the Shares after the effective date of the
Registration Statement. The Fund will advise you promptly
and, if requested by you, will confirm such advice in writing
(i) when the Registration Statement or such post-effective
amendment has become effective and (ii) when the Prospectus
has been timely filed pursuant to Rule 497(c) or Rule 497(h)
of the 1933 Act Rules and Regulations or the certification
permitted pursuant to Rule 497(j) of the 1933 Act Rules and
Regulations has been timely filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested
by you, will confirm such advice in writing: (i) of any
request made by the Commission for amendment of or a
supplement to the Registration Statement, any Prepricing
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Prospectus or the Prospectus (or any amendment or supplement
to any of the foregoing) or for additional information, (ii)
of the issuance by the Commission, the National Association
of Securities Dealers, Inc. (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
suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter
defined), of any notice pursuant to Section 8(e) of the 1940
Act, of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or
contemplated initiation of any proceeding for any such
purposes, (iii) of receipt by the Fund, the Manager or any
affiliate of the Fund or any representative or attorney of
the Fund or the Manager of any other material communication
from 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
relating to the Fund (if such communication relating to the
Fund is received by such person within three years after the
date of this Agreement), the Registration Statement, the 1940
Act Notification, the Prospectus, any Prepricing Prospectus,
any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing), this Agreement or any
of the Fund Agreements (if such communication relating to any
Fund Agreement relates to the transactions contemplated by
this Agreement) and (iv) within the period of time referred
to in paragraph (f) below, of any material adverse change in
the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund
or the Manager or of the happening of any event which makes
any statement of a material fact made in the Registration
Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) untrue or which requires
the making of any additions to or changes in the Registration
Statement, the Prospectus, any Prepricing Prospectus or any
sales materials (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the
Rules and Regulations to be stated therein or necessary in
order to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they
were made) not misleading or of the necessity to amend or
supplement the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the
foregoing) to comply with the 1933 Act, the 1940 Act, the
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Rules and Regulations or any other law or order of any court
or regulatory body. If at any time 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 shall issue any order suspending the
effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) or
suspending the qualification of the Shares for offering or
sale in any jurisdiction, the Fund will use its reasonable
best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three
signed copies of the registration statement as originally
filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto
(except any post-effective amendment required by Rule 8b-16
of the 1940 Act Rules and Regulations which is filed with the
Commission after the later of (x) one year from the date of
this Agreement and (y) the date on which the distribution of
the Shares is completed) and will also furnish to you,
without charge, such number of conformed copies of the
registration statement as originally filed and of each
amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one
year from the date of this Agreement and (y) the date on
which the distribution of the Shares is completed), with or
without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to
the Prospectus, any Prepricing Prospectus or any sales
material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably
object within a reasonable time after being so advised or
(ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports
to you, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this
Agreement, the Fund has delivered to you, without charge, in
such quantities as you have reasonably requested, copies of
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each form of any Prepricing Prospectus. The Fund consents to
the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters
and by dealers, prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time, for
such period as in the opinion of counsel for the Underwriters
a prospectus is required by Rule 174 under the 1933 Act to be
delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to
each Underwriter and each dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Fund consents to
the use of the Prospectus (and of any amendments or
supplements thereto) in accordance with the provisions of the
1933 Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold,
both in connection with the offering or sale of the Shares
and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection with sales of
Shares by any Underwriter or dealer. If during such period
of time any event shall occur that in the judgment of the
Fund or in the opinion of counsel for the Underwriters is
required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading or if it is
necessary to supplement or amend the Prospectus to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or
any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate amendment or
supplement thereto and will expeditiously furnish to the
Underwriters and dealers, without charge, such number of
copies thereof as they shall reasonably request. In the
event that the Prospectus is to be amended or supplemented,
the Fund, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by
the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel
for the Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the
several Underwriters and by dealers under the securities or
Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other
documents necessary or appropriate in order to effect such
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registration or qualification; provided that in no event
shall the Fund be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its
security holders an earnings statement, which need not be
audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not
later than 15 months thereafter, as soon as practicable after
the end of such period, which earnings statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 of the 1933 Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth
in paragraph 6 of Item 33 of Part C of the Registration
Statement.
(j) During the period of five years hereafter, the Fund
will furnish to you (i) as soon as available, a copy of each
report of the Fund mailed to shareholders or filed with the
Commission and (ii) from time to time such other information
concerning the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof
(other than pursuant to the second paragraph of Section 10
hereof or by notice given by you terminating this Agreement
pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Fund or the Manager
to comply with the terms or fulfill any of the conditions of
this Agreement, the Fund and the Manager, jointly and
severally, agree to reimburse the Underwriters for all
out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in connection
herewith, but the Fund and the Manager shall in no event be
liable for any internal cost of the Underwriters or any loss
of anticipated profits or speculative, consequential or
similar damages for such termination.
(l) The Fund will direct the investment of the net
proceeds of the offering of the Shares in such a manner as to
comply with the investment objectives, policies and
restrictions of the Fund as described in the Prospectus.
(m) The Fund will file the requisite copies of the
Prospectus with the Commission in a timely fashion pursuant
to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
8
Regulations, whichever is applicable or, if applicable, will
file in a timely fashion the certification permitted by Rule
497(j) of the 1933 Act Rules and Regulations and will advise
you of the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to
any dividend reinvestment plan of the Fund in effect on the
date hereof, the Fund will not sell, contract to sell or
otherwise dispose of, any senior securities (as defined in
the 1940 Act) or any securities convertible into or
exercisable or exchangeable for senior securities or grant
any options or warrants to purchase senior securities of the
Fund, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx Inc.
(o) Except as stated in this Agreement and in the
Prospectus, neither the Fund nor the Manager has taken, nor
will it take, directly or indirectly, any action designed to
or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Shares.
(p) The Fund will use its reasonable best efforts to
cause the Shares, prior to the Closing Date, to be assigned a
rating of 'Aaa' by Xxxxx'x Investors Service, Inc. ("Xxxxx'x)
and 'AAA' by Standard & Poor's Rating Service ("S&P", and
together with Xxxxx'x, the "Rating Agencies").
6. Representations and Warranties of the Fund and the
Manager. The Fund and the Manager, jointly and severally,
represent and warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any
amendment or supplement thereto complied when so filed in all
material respects with the provisions of the 1933 Act, the
1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it
became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become
effective and the Prospectus and any amendment or supplement
thereto when filed with the Commission under Rule 497 of the
1933 Act Rules and Regulations and the 1940 Act Notification
when originally filed with the Commission and any amendment
or supplement thereto when filed with the Commission complied
or will comply in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations
and did not or will not at any such times contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
9
statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading;
except that this representation and warranty does not apply
to statements in or omissions from the Registration Statement
or the Prospectus (or any amendment or supplement thereto)
made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Fund by or on
behalf of any Underwriter through you expressly for use
therein.
(c) All the outstanding Common Shares of the Fund have
been duly authorized and validly issued, are fully paid and,
except as described in the Registration Statement,
nonassessable and are free of any preemptive or similar
rights; the Shares have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued,
fully paid and, except as described in the Registration
Statement, nonassessable and free of any preemptive or
similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the
Prospectus (and any amendment or supplement to either of
them).
(d) The Fund has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Maryland, with full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement
to 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 the conduct of
its business requires such registration or qualification,
except where the failure so to register or to qualify does
not have a material, adverse effect on the condition
(financial or other), business, properties, net assets or
results of operations of the Fund. The Fund has no
subsidiaries.
(e) There are no legal or governmental proceedings
pending or, to the knowledge of the Fund, threatened, against
the Fund or to which the Fund or any of its properties is
subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as
required and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described
in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) or to be filed as
an exhibit to the Registration Statement that are not
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described or filed as required by the 1933 Act, the 1940 Act
or the Rules and Regulations.
(f) The Fund is not in violation of its Articles of
Incorporation or By-Laws or in material violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of 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 the Fund or
in breach or default in the performance of any obligation,
agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or in
any agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its properties
may be bound.
(g) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement nor any
of the Fund Agreements by the Fund, nor the consummation by
the Fund of the transactions contemplated hereby or thereby
(A) requires any consent, approval, authorization or other
order of or registration or filing with the Commission, the
NASD, 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, if
any) or conflicts or will conflict with or constitutes or
will constitute a breach of the Articles of Incorporation,
the Articles Supplementary or By-Laws of the Fund 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 the
Fund is a party or by which it or any of its properties may
be bound or violates or will violate any material statute,
law, regulation or filing or judgment, injunction, order or
decree applicable to the Fund or any of its properties or
will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of
the Fund pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to
which any of the property or assets of the Fund is subject.
(h) 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,
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adverse change in the condition (financial or other),
business, properties, net assets or results of operations of
the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund,
whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by the Fund
which are material to the Fund other than those in the
ordinary course of its business as described in the
Prospectus (and any amendment or supplement thereto) and (C)
there has been no dividend or distribution of any kind
declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Xxxxx & Young LLP, who have
audited or shall audit the financial statements included in
the Registration Statement and the Prospectus (and any
amendment or supplement to either of them), are an
independent public accounting firm as required by the 1933
Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related
schedules and notes, included in the Registration Statement
or the Prospectus (or any amendment or supplement to either
of them) present fairly the financial position of the Fund on
the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
periods involved except as disclosed therein; and the other
financial and statistical information and data included in
the Registration Statement or the Prospectus (or any
amendment or supplement thereto) are accurately derived from
such financial statements and the books and records of the
Fund.
(k) The Fund, subject to the Registration Statement
having been declared effective and the filing of the
Prospectus under Rule 497 under the Rules and Regulations,
has taken all required action under the 1933 Act, the 1940
Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this
Agreement.
(l) The execution and delivery of and the performance
by the Fund of its obligations under this Agreement and the
Fund Agreements have been duly and validly authorized by the
Fund and this Agreement and the Fund Agreements have been
duly executed and delivered by the Fund and constitute the
valid and legally binding agreements of the Fund, enforceable
against the Fund in accordance with their terms, except as
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rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles.
(m) Except as disclosed in the Registration Statement
and the Prospectus (and any amendment or supplement to either
of them), subsequent to the 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), the Fund has not incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Fund
and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of
the Fund or any material, adverse change or any development
involving or which should reasonably be expected to involve a
prospective material, adverse change in the condition
(financial or other), business, properties, net assets or
results of operations of the Fund.
(n) The Fund has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of
the distribution of the Shares, will not distribute to the
public any offering material in connection with the offering
and sale of the Shares other than the Registration Statement,
the Prepricing Prospectus included in Pre-Effective Amendment
No. 1 to the Registration Statement and the Prospectus.
(o) The Fund has such licenses, permits, and
authorizations of governmental or regulatory authorities
("permits") as are necessary to own its property and to
conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the
Fund has fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the Fund under any such
permit, subject in each case to such qualification as may be
set forth in the Prospectus (and any amendment or supplement
thereto); and, except as described in the Prospectus (and any
amendment or supplement thereto), none of such permits
contains any restriction that is materially burdensome to the
Fund.
(p) The Fund maintains and will maintain a system of
internal accounting controls sufficient to provide reasonable
13
assurances that (i) transactions are executed in accordance
with management's general or specific authorization and with
the investment policies and restrictions of the Fund and the
applicable requirements of the 1940 Act, the 1940 Act Rules
and Regulations and the Internal Revenue Code of 1986, as
amended (the "Code"); (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to
calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and
records requirements under the 1940 Act and the 1940 Act
Rules and Regulations; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded account for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(q) The Fund has filed all tax returns required to be
filed and the Fund is not in material default in the payment
of any taxes which were shown as payable on said returns or
any assessments with respect thereto.
(r) The conduct by the Fund of its business (as
described in the Prospectus) does not require it to be the
owner, possessor or licensee of any patents, patent licenses,
trademarks, service marks or trade names which it does not
own, possess or license.
(s) Except as stated in this Agreement and in the
Prospectus (and any amendment or supplement thereto), the
Fund has not taken and will not 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 Shares in violation of
federal securities laws and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(t) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and
the 1940 Act Notification has been duly filed with the
Commission and, at the time of filing thereof and at the time
of filing any amendment or supplement thereto, conformed in
all material respects with all applicable provisions of the
1940 Act and the Rules and Regulations. The Fund has not
received any notice from the Commission pursuant to Section
8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement (or any amendment
or supplement to either of them).
(u) All advertising, sales literature or other
promotional material (including "prospectus wrappers" and
14
"broker kits"), whether in printed or electronic form,
authorized in writing by or prepared by the Fund or the
Manager for use in connection with the offering and sale of
the Shares (collectively, "sales material") complied and
comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Rules and
Regulations and the rules and interpretations of the NASD and
if required to be filed with the NASD under the NASD's
conduct rules were so filed. No sales material, when read
together with the Prospectus, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(v) This Agreement and each of the Fund Agreements
complies in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by
the Commission under the Advisers Act (the "Advisers Act
Rules and Regulations").
(w) No holder of any security of the Fund has any right
to require registration of Common Shares, the Shares or any
other security of the Fund because of the filing of the
registration statement or consummation of the transactions
contemplated by this Agreement.
(x) The Fund intends to direct the investment of the
proceeds of the offering of the Shares in such a manner as to
comply with the requirements of Subchapter M of the Code.
7. Representations and Warranties of the Manager. The
Manager represents and warrants to each Underwriter as follows:
(a) The Manager has been duly formed and is validly
existing and in good standing under the laws of Delaware,
with power and authority (partnership and other) to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign
partnership for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as
to require such qualification, other than where the failure
to be so qualified or in good standing would not have a
material adverse effect on the Manager and its subsidiaries
taken as a whole.
(b) The Manager is duly registered as an investment
adviser under the Advisers Act and is not prohibited by any
15
provision of the Advisers Act or the 1940 Act, or the rules
and regulations under such Acts, from acting as an investment
adviser for the Fund as contemplated in the Prospectus and
the Management Agreement. There does not exist to the
knowledge of the Manager any proceeding, which might
materially adversely affect the registration of the Manager
with the Commission.
(c) Each of this Agreement, the Management Agreement
and any other Fund Agreement to which the Manager is a party
has been duly authorized, executed and delivered by the
Manager and complies with all applicable provisions of the
Advisers Act, the 1940 Act, and the rules and regulations
under such Acts.
(d) Neither the execution, delivery or performance by
the Manager of its obligations under this Agreement, the
Management Agreement or any other Fund Agreement to which the
Manager is a party nor the consummation of the transactions
contemplated therein or in the Registration Statement or
Prospectus nor the fulfillment of the terms thereof will
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Manager is a party or by which the
Manager is bound or to which any of the property or assets of
the Manager is subject, nor will any such action result in
any violation of the provisions of the organizational
documents of the Manager or any applicable law or statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Manager or any of
its properties.
(e) Other than (i) as set forth in Part II, Item 1 of
the Quarterly Report on Form 10-Q filed by the Manager with
the Commission with respect to the quarterly periods ended
March 31, 2001, June 30, 2001 and September 30, 2001 pursuant
to Section 13 or 15(d) of the 1934 Act; (ii) as set forth in
the Current Report on Form 8-K filed by the Manager with the
Commission on December 13, 2001 and January 10, 2002 pursuant
to Section 13 or 15(d) of the 1934 Act; and (iii) the
complaint entitled Xxxxx v. Alliance Capital Management L.P.
and Alliance Premier Growth Fund ("Xxxxx Complaint"), which
was filed in Federal district court in the District of New
Jersey against the Manager and Alliance Premier Growth Fund,
and the complaint entitled Xxxxx v. Alliance Capital
Management L.P. and Alliance Premier Growth Fund ("Xxxxx
Complaint"), which was filed in Federal district court in the
District of New Jersey against the Manager and Alliance
Premier Growth Fund, the plaintiffs' allegations and relief
sought in the Xxxxx Complaint and the Xxxxx Complaint being
16
virtually identical to the allegations and relief sought in
the actions discussed in (ii) above, there are no legal or
governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Manager, threatened
against or affecting the Manager or any of its subsidiaries
or any of their respective properties or to which the Manager
or any of its subsidiaries is or may be a party or to which
any property of the Manager or any of its subsidiaries is or
may be the subject which, if determined adversely to the
Manager or any of its subsidiaries, would individually or in
the aggregate have, or reasonably be expected to have, a
material adverse effect on the Manager's ability to perform
its obligations under the Management Agreement and, to the
Manager's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(f) No consent, approval, authorization, order,
license, registration or qualification of, or any filing
with, any court or governmental agency or body, whether
foreign or domestic, is required for the consummation by the
Manager of the transactions contemplated by this Agreement.
(g) The Manager owns or possesses all material
governmental licenses, permits, consents, orders, approvals
or other authorizations, whether foreign or domestic, to
enable the Manager to perform its obligations under the
Management Agreement.
(h) The information regarding the Manager in the
Registration Statement and the Prospectus complies in all
material respects with the requirements of Form N-2 and, as
of the date of the Prospectus, such information regarding the
Manager did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(i) Except as stated in this Agreement and in the
Prospectus (and in any amendment or supplement thereto), the
Manager has not taken and will not 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 Shares in
violation of federal securities laws and the Manager is not
aware of any such action taken or to be taken by any
affiliates of the Manager.
(j) In the event that the Fund or the Manager makes
available any promotional materials intended for use only by
17
qualified broker-dealers and registered representatives
thereof by means of an Internet web site or similar
electronic means, the Manager 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.
8. Indemnification and Contribution.
(a) The Fund and the Manager, jointly and severally,
agree to indemnify and hold harmless each of you and each
other Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, from and against any and all
losses, claims, damages, liabilities and expenses, joint or
several (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, the Prospectus, any Prepricing Prospectus, any
sales material (or any amendment or supplement to any of the
foregoing) or arising out of or based upon any omission or
alleged omission to state therein 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, except insofar as
such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Underwriters
furnished in writing to the Fund by or on behalf of any
Underwriter through you expressly for use in connection
therewith; provided, however, that the foregoing indemnity
with respect to the Registration Statement, the Prospectus or
any Prepricing Prospectuses (or any amendment or supplement
to any of the foregoing) shall not inure to the benefit of
any Underwriter from whom the person asserting any loss,
claim, damage, liability or expense purchased Shares, if it
is shown that a copy of the Prospectus, as then amended or
supplemented, which would have cured any defect giving rise
to such loss, claim, damage, liability or expense was not
sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered, at or
prior to the confirmation of the sale of such Shares to such
person and such Prospectus, amendments and supplements had
been provided by the Fund to the Underwriters in the
requisite quantity and on a timely basis to permit proper
delivery. The foregoing indemnity agreement shall be in
18
addition to any liability which the Fund or the Manager may
otherwise have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any
Underwriter in respect of which indemnity may be sought
against the Fund or the Manager, such Underwriter or such
controlling person shall promptly notify the Fund or the
Manager and the Fund or the Manager shall assume the defense
thereof, including the employment of counsel and the payment
of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter
or controlling person unless (i) the Fund or the Manager have
agreed in writing to pay such fees and expenses, (ii) the
Fund and the Manager have failed within a reasonable time to
assume the defense and employ counsel or (iii) the named
parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such
controlling person and the Fund or the Manager and such
Underwriter or such controlling person shall have been
advised by its counsel that representation of such
indemnified party and the Fund or the Manager by the same
counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by
the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the
Fund and the Manager shall not have the right to assume the
defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood,
however, that the Fund and the Manager shall, in connection
with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same
general allegations or circumstances be liable for the
reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any
action, suit or proceeding in more than one jurisdiction) at
any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you
or among themselves, which firm shall be designated in
writing by Xxxxxxx Xxxxx Xxxxxx Inc. and that, subject to the
requirements of 1940 Act Release No. 11330, all such fees and
expenses shall be reimbursed promptly as they are incurred.
The Fund and the Manager shall not be liable for any
settlement of any such action, suit or proceeding effected
without the written consent of the Fund or the Manager, but
if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or
19
proceeding, the Fund and the Manager agree to indemnify and
hold harmless any Underwriter, to the extent provided in the
preceding paragraph, and any such controlling person from and
against any loss, liability, damage or expense by reason by
such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Fund and the Manager,
their trustees, directors, any officers of the Fund who sign
the Registration Statement and any person who controls the
Fund or the Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as
the foregoing indemnity from the Fund and the Manager to each
Underwriter, but only with respect to information relating to
such Underwriter furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement
to either of them). If any action, suit or proceeding shall
be brought against the Fund or the Manager, any of their
trustees, directors, any such officer or any such controlling
person, based on the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) and in
respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter
shall have the rights and duties given to the Fund by
paragraph (b) above (except that if the Fund or the Manager
shall have assumed the defense thereof such Underwriter shall
not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's
expense) and the Fund and the Manager, their trustees,
directors, any such officer and any such controlling person
shall have the rights and duties given to the Underwriters by
paragraph (b) above. The foregoing indemnity agreement shall
be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section
8 is unavailable to an indemnified party under paragraphs (a)
or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Fund and the Manager on the one hand (treated jointly for
this purpose as one person) and the Underwriters on the other
hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
20
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Fund and the
Manager on the one hand (treated jointly for this purpose as
one person) and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The
relative benefits received by the Fund and the Manager on the
one hand (treated jointly for this purpose as one person) and
the Underwriters on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Fund as
set forth in the table on the cover page of the Prospectus
bear to the total payments received by the Underwriters with
respect to the Shares as set forth in the table on the cover
page of the Prospectus. The relative fault of the Fund and
the Manager on the one hand (treated jointly for this purpose
as one person) and of the Underwriters on the other hand
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Fund and the
Manager on the one hand (treated jointly for this purpose as
one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
(e) The Fund, the Manager and the Underwriters agree
that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
21
fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 8 are several in
proportion to the respective number of Shares set forth
opposite their names in Schedule I (or such numbers of Shares
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any
settlement of any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability from claimants on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 8 shall be
paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained
in this Section 8 and the representations and warranties of
the Fund and the Manager set forth in this Agreement shall
remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the
Manager or their trustees, directors or officers or any
person controlling the Fund or the Manager, (ii) acceptance
of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter
or to the Fund, the Manager or their trustees, directors or
officers or any person controlling any Underwriter, the Fund
or the Manager shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. Conditions of Underwriters' Obligations.
The several obligations of the Underwriters to purchase any
Shares hereunder are subject to, in the good faith judgment of
the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and
the Manager contained herein on and as of the date hereof, the
date on which the Registration Statement becomes or became
effective, the date of the Prospectus (and of any amendment or
supplement thereto), and the Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Manager or
any of their officers in any certificate delivered to the
Underwriters or their counsel pursuant to this Agreement and to
the following conditions:
22
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or
a post-effective amendment thereto to be declared effective
before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City
time, on the date hereof or at such later date and time as
shall be consented to in writing by you and all filings, if
any, required by Rules 497 and 430A under the 1933 Act Rules
and Regulations shall have been timely made; no order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Fund,
the Manager or any Underwriter, threatened by the Commission
and any request of the Commission for additional information
(to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) You shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxx LLP, counsel for the Fund, dated
the Closing Date and addressed to you, to the effect that:
(i) The Fund has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Maryland with full corporate
power and authority to own, lease and operate its
properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the
opinion) and is duly registered and qualified to conduct
its business and is in good standing in each
jurisdiction where the nature of its properties or the
conduct of its business requires such registration or
qualification, except where the failure so to register
or to qualify does not have a material, adverse effect
on the condition (financial or other), business,
properties, net assets or results of operations of the
Fund;
(ii) The authorized and outstanding capital stock
of the Fund is as set forth in the Registration
Statement and Prospectus (or any amendment or supplement
thereto through the date of the opinion); and the
description of the authorized capital stock of the Fund
contained in the Prospectus (or any amendment or
supplement thereto through the date of the opinion)
under the captions "Description of Preferred Shares",
"Description of Common Shares" and "Description of
Shares" conforms in all material respects as to legal
23
matters to the terms thereof contained in the Fund's
Articles of Incorporation and Articles Supplementary;
(iii) All the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have
been duly authorized and validly issued and are fully
paid and nonassessable;
(iv) The Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable and not
subject to any preemptive rights that entitle or will
entitle any person to acquire any Shares upon the
issuance thereof by the Fund;
(v) The form of certificates for the Shares is in
due and proper form and complies with the requirements
of all applicable laws;
(vi) The Fund has the power and authority to enter
into this Agreement and the Fund Agreements and to
issue, sell and deliver the Shares to the Underwriters
as provided herein and this Agreement and each of the
Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization,
execution and delivery by the other parties thereto,
constitute the valid, legal and binding agreements of
the Fund, enforceable against the Fund in accordance
with their terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state
securities laws or principles of public policy and
subject to the qualification that the enforceability of
the Fund's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable
principles, whether enforcement is considered in a
proceeding in equity or at law;
(vii) The Manager has corporate power and authority
to enter into this Agreement and the Management
Agreement and each of this Agreement and the Management
Agreement has been duly authorized, executed and
delivered by the Manager and each of this Agreement and
the Management Agreement is a valid, legal and binding
agreement of the Manager, enforceable against the
Manager in accordance with its terms, except as
enforcement of rights to indemnity and contribution
hereunder may be limited by Federal or state securities
laws or principles of public policy and subject to the
24
qualification that the enforceability of the Manager'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, whether
enforcement is considered in a proceeding in equity or
at law;
(viii) The Fund Agreements comply in all material
respects with all applicable provisions of the 1933 Act,
the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations;
(ix) The Fund is not in violation of its Articles
of Incorporation, the Articles Supplementary or By-Laws
or to the best knowledge of such counsel after
reasonable inquiry, is not in default in the performance
of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence
of indebtedness, except as may be disclosed in the
Prospectus (and any amendment or supplement thereto);
(x) No consent, approval, authorization or 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 body, agency or regulatory,
self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been
obtained under the 1933 Act and the 1934 Act or such as
may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares)
for the valid issuance and sale of the Shares to the
Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by
the Fund, or the consummation by the Fund of the
transactions contemplated thereby or hereby;
(xi) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this
Agreement or the Fund Agreements, compliance by the Fund
with the provisions hereof or thereof, consummation by
the Fund of the transactions contemplated hereby or
thereby violates the Articles of Incorporation, Articles
Supplementary or By-Laws of the Fund or any material
agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its
properties is bound that is an exhibit to the
Registration Statement or that is known to such counsel
after reasonable inquiry or, to the best of such
counsel's knowledge after reasonable inquiry, will
25
result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets
of the Fund, nor, to the best of such counsel's
knowledge after reasonable inquiry, will any such action
result in any violation of any existing material law,
regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws),
judgment, injunction, order or decree applicable to the
Fund or any of its properties;
(xii) The Registration Statement and all
post-effective amendments, if any, have become effective
under the 1933 Act and, to the best knowledge of such
counsel after reasonable inquiry, no order suspending
the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending
before or contemplated by the Commission; and any filing
of the Prospectus and any amendments or supplements
thereto required pursuant to Rule 497 of the 1933 Act
Rules and Regulations prior to the date of such opinion
have been made in accordance with Rule 497;
(xiii) The Fund is duly registered with the
Commission under the 1940 Act as a closed-end, non-
diversified management investment company and all action
has been taken by the Fund as required by the 1933 Act
and the 1940 Act and the Rules and Regulations in
connection with the issuance and sale of the Shares to
make the public offering and consummate the sale of the
Shares as contemplated by this Agreement;
(xiv) The statements made in the Registration
Statement and the Prospectus (and any amendment or
supplement to either of them through the date of the
opinion) under the caption "Tax Matters" have been
reviewed by such counsel and to the extent they describe
or summarize tax laws, doctrines or practices of the
United States, present a fair and accurate description
or summary thereof as of the date of the opinion;
(xv) The statements in the Registration Statement
and Prospectus (and any amendment or supplement to
either of them through the date of the opinion), insofar
as they are descriptions of contracts, agreements or
other legal documents or refer to statements of law or
legal conclusions, are accurate and present fairly the
information required to be shown;
(xvi) The Registration Statement and the Prospectus
(and any amendment or supplement to either of them
through the date of the opinion) comply as to form in
26
all material respects with the requirements of the 1933
Act, the 1940 Act and the Rules and Regulations (except
that no opinion need be expressed as to the financial
statements and the notes thereto and the schedules and
other financial and statistical data included therein as
to which such counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after
reasonable inquiry, (A) other than as described or
contemplated in the Prospectus (or any amendment or
supplement thereto through the date of the opinion),
there are no actions, suits or other legal or
governmental proceedings pending or expressly threatened
against the Fund and (B) there are no material
agreements, contracts, indentures, leases or other
instruments that are required to be described in the
Registration Statement or the Prospectus (or any
amendment or supplement to either of them through the
date of the opinion) or to be filed as an exhibit to the
Registration Statement that are not described or filed
as required, as the case may be; and
(xviii) To the best knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of any
law, ordinance, administrative or governmental rule or
regulation applicable to the Fund or of any decree of
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 the Fund.
Such counsel shall also state that although counsel has
not undertaken, except as otherwise indicated in their
opinion, to determine independently and does not assume any
responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement
and the Prospectus, including review and discussion of the
contents thereof, and nothing has come to the attention of
such counsel that has caused it to believe that the
Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date
and as of the Closing Date, contained an untrue statement of
a material fact or omitted 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 or
that any amendment or supplement to the Prospectus, as of the
Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order
27
to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being
understood that such counsel need express no view with
respect to the financial statements and the notes thereto and
the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may limit such
opinion to matters involving the application of the laws of
the State of New York, the State of Maryland, the State of
Delaware and the United States. To the extent they deem
proper and to the extent specified in such opinion, such
counsel may rely, as to matters involving the application of
laws of the State of Maryland, upon the opinion of Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP and, as to matters involving
the application of laws of the State of California, upon the
opinion of Xxxxx & Xxxxxx LLP or, in either case, other
counsel of good standing whom they believe to be reliable and
who are satisfactory to the Underwriters; provided that (X)
such reliance is expressly authorized by the opinion so
relied upon and a copy of each such opinion is delivered to
the Underwriters and is, in form and substance, satisfactory
to them and their counsel and (Y) Xxxxxx & Xxxxxx LLP states
in their opinion that they believe that they and the
Underwriters are justified in relying thereon.
(c) You shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxx, Xx., Senior Vice President and
General Counsel of Alliance Capital Management Corporation,
the general partner of the Manager, dated the Closing Date
and addressed to you, to the effect that:
(i) The Manager has been duly formed and is
validly existing and in good standing under the laws of
Delaware, with power and authority (partnership and
other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Manager has been duly qualified as a
foreign partnership for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such
qualification, other than where the failure to be so
qualified or in good standing would not have a material
adverse effect on the Manager and its subsidiaries taken
as a whole;
(iii) The Manager is duly registered as an
investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the 1940 Act, or the
28
rules and regulations under such Acts, from acting as an
investment adviser for the Fund as contemplated in the
Prospectus and the Management Agreement;
(iv) Neither the performance by the Manager of its
obligations under this Agreement nor the consummation of
the transactions contemplated therein or in the
Registration Statement nor the fulfillment of the terms
thereof is, or with the giving of notice or lapse of
time or both would be, in violation of or constitute a
default under, the limited partnership agreement of the
Manager or any agreement known to such counsel to which
the Manager is a party or by which it or any of its
properties is bound, except for violations and defaults
which individually and in the aggregate are not material
to the Manager and its subsidiaries taken as a whole;
or, to the knowledge of such counsel, the terms and
provisions of any applicable order, law, rule or
regulation of any court or governmental agency or body
under the laws of Delaware, federal law or the laws of
any other jurisdiction in the United States having
jurisdiction over the Manager or any of its properties;
(v) Other than (i) as set forth in Part II, Item 1
of the Quarterly Report on Form 10-Q filed by the
Manager with the Commission with respect to the
quarterly periods ended March 31, 2001, June 30, 2001
and September 30, 2001 pursuant to Section 13 or 15(d)
of the 1934 Act; (ii) as set forth in the Current Report
on Form 8-K filed by the Manager with the Commission on
December 13, 2001 and January 10, 2002 pursuant to
Section 13 or 15(d) of the 1934 Act; and (iii) the
complaint entitled Xxxxx v. Alliance Capital Management
L.P. and Alliance Premier Growth Fund ("Xxxxx
Complaint"), which was filed in Federal district court
in the District of New Jersey against the Manager and
Alliance Premier Growth Fund, and the complaint entitled
Xxxxx v. Alliance Capital Management L.P. and Alliance
Premier Growth Fund ("Xxxxx Complaint"), which was filed
in Federal district court in the District of New Jersey
against the Manager and Alliance Premier Growth Fund,
the plaintiffs' allegations and relief sought in the
Xxxxx Complaint and the Xxxxx Complaint being virtually
identical to the allegations and relief sought in the
actions discussed in (ii) above, to the knowledge of
such counsel, there is no pending or threatened action,
suit or proceeding to which the Manager is a party
before or by any court or governmental agency, authority
or body or any arbitrator, whether foreign or domestic,
which reasonably might result in a material adverse
29
effect on the Manager's ability to perform its
obligations under the Management Agreement.
In rendering such opinion, such counsel may limit such
opinion to matters involving the application of the laws of
the State of New York, the State of Delaware and the United
States.
(d) You shall have received on the Closing Date an
opinion of Xxxxx & Xxxxxx LLP, special California counsel to
the Fund, dated the Closing Date and addressed to you, to the
effect that:
The statements contained in the Prospectus under the
headings "Prospectus Summary - Special Risk Considerations -
Concentration Risk", "Risks - Concentration Risk" and "Tax
Matters - California Tax Matters" and in Appendix D to the
statement of additional information under the heading
"Factors Pertaining to California", to the extent that such
statements constitute matters of law or legal conclusions,
provide a fair and accurate summary of such law or
conclusions. Such statements are based on current law and
special counsel's understanding of the Fund's proposed
operations, as disclosed in the Prospectus.
Such counsel shall also state that although special
counsel does not pass upon or assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus
(other than to the extent set forth above), and has not made
any independent check or verification thereof, no facts have
come to the attention of such special counsel which would
lead it to believe that the material contained in the
Registration Statement, at the time it became effective, and
the Prospectus, as of its date and as of the Closing Date,
under the headings "Prospectus Summary - Special Risk
Considerations - Concentration Risk", "Risks - Concentration
Risk" and "Tax Matters - California Tax Matters" and in
Appendix D to the statement of additional information under
the heading "Factors Pertaining to California", contained any
untrue statement of a material fact or omitted 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 or that any statement contained in any amendment
or supplement to the Prospectus under such headings, as of
the Closing Date, contained any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
30
In rendering such opinion, such special counsel may rely
as to matters of fact, to the extent such special counsel
deems proper, on certificates of responsible officers of the
Fund and of the Manager, and of public officials.
(e) You shall have received on the Closing Date, an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you,
with respect to such matters as the Underwriters may require
and the Fund, the Manager and their respective counsels shall
have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such
matters.
(f) You shall have received letters addressed to you,
and dated the date hereof and the Closing Date from Ernst &
Young LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use
of the Prospectus (or any amendment or supplement thereto) or
any Prepricing Prospectus or any sales material shall have
been issued and no proceedings for such purpose or for the
purpose of commencing an enforcement action against the Fund,
the Manager or, with respect to the transactions contemplated
by the Prospectus (or any amendment or supplement thereto)
and this Agreement, any Underwriter, may be pending before
or, to the knowledge of the Fund, the Manager or any
Underwriter or in the reasonable view of counsel to the
Underwriters, shall be threatened or contemplated by the
Commission at or prior to the Closing Date and that any
request for additional information on the part of the
Commission (to be included in the Registration Statement, the
Prospectus or otherwise) be complied with to the satisfaction
of the Underwriters, (ii) there shall not have been any
change in the capital stock of the Fund nor any material
increase in debt of the Fund from that set forth in the
Prospectus (and any amendment or supplement thereto) and the
Fund shall not have sustained any material liabilities or
obligations, direct or contingent, other than those reflected
in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have
been any material, adverse change in the condition (financial
or other), business, prospects, properties, net assets or
results of operations of the Fund or the Manager; (iv) the
Fund and the Manager must not have sustained any material
loss or interference with its business from any court or from
legislative or other governmental action, order or decree or
from any other occurrence not described in the Registration
Statement and the Prospectus (and any amendment or supplement
31
to either of them); and (v) all of the representations and
warranties of the Fund and the Manager contained in this
Agreement shall be true and correct on and as of the date
hereof and as of the Closing Date as if made on and as of the
Closing Date.
(h) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change or any
development involving a prospective change in or affecting
the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund
or, to the extent such change or development with respect to
the Manager had a material adverse effect on the Manager's
ability to perform its obligations under the Management
Agreement, the Manager, not contemplated by the Prospectus
(and any amendment or supplement thereto), which in your
opinion, would materially, adversely affect the market for
the Shares or (ii) any event or development relating to or
involving the Fund, the Manager or any officer or trustee or
director of the Fund or the Manager which makes any statement
of a material fact made in the Prospectus (or any amendment
or supplement thereto) untrue or which, in the opinion of the
Fund and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order
to state a material fact required by the 1933 Act, the 1940
Act, the Rules and Regulations or any other law to be stated
therein or necessary in order to make the statements therein
(in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, if amending or
supplementing the Prospectus (or any amendment or supplement
thereto) to reflect such event or development would, in your
opinion, materially, adversely affect the market for the
Shares.
(i) Neither the Fund nor the Manager shall have failed
at or prior to the Closing Date to have performed or complied
with any of the agreements herein contained and required to
be performed or complied with by them at or prior to the
Closing Date.
(j) You shall have received on the Closing Date a
certificate, dated such date, of the president or any vice
president and of the controller or treasurer of each of the
Fund and the Manager certifying that (i) the signers have
carefully examined the Registration Statement, the Prospectus
(and any amendments or supplements to either of them) and
this Agreement, (ii) the representations and warranties of
the Fund (with respect to the certificates from such Fund
officers) and the representations of the Manager (with
respect to the certificates from such officers of the
32
Manager) in this Agreement are true and correct on and as of
the date of the certificate as if made on such date,
(iii) since the date of the Prospectus (and any amendment or
supplement thereto) there has not been any material, adverse
change in the condition (financial or other), business,
prospects (other than as a result of a change in the
financial markets generally), properties, net assets or
results of operations of the Fund (with respect to the
certificates from such Fund officers) or, to the extent that
such material adverse change has a material adverse effect on
the Manager's ability to perform its obligations under the
Management Agreement, the Manager (with respect to the
certificates from such officers of the Manager), (iv) to the
knowledge of such officers after reasonable investigation, no
order suspending the effectiveness of the Registration
Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect
to the certificates from such Fund officers) or the Manager
(with respect to the certificates from such officers of the
Manager) has been issued and no proceedings for any such
purpose are pending before or threatened by the Commission or
any court or other regulatory body, 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,
(v) each of the Fund (with respect to certificates from such
Fund officers) and the Manager (with respect to certificates
from such officers of the Manager) has performed and complied
with all agreements that this Agreement require it to perform
by such Closing Date, (vi) neither the Fund (with respect to
the certificate from such officers of the Fund) nor the
Manager (with respect to the certificate from such officers
of the Manager) has sustained any material loss or
interference with its business from any court or from
legislative or other governmental action, order or decree or
from any other occurrence not described in the Registration
Statement and the Prospectus and any amendment or supplement
to either of them and (vii) with respect to the certificate
from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in
the debt of the Fund from that set forth in the Prospectus
(and any amendment or supplement thereto) and the Fund has
not sustained any material liabilities or obligations, direct
or contingent, other than those reflected in the Prospectus
(and any amendment or supplement thereto).
(k) The Fund shall have furnished to you a report
showing compliance with the asset coverage requirements of
the 1940 Act and a Preferred Shares Basic Maintenance Report
(as defined in the Articles Supplementary), each dated the
Closing Date and in form and substance satisfactory to you.
33
Each such report may use portfolio holdings and valuations as
of the close of business of any day not more than six
business days preceding the Closing Date, provided, however,
that the Fund represents in such report that its total net
assets as of the Closing Date have not declined by 5% or more
from such valuation date.
(l) The Fund shall have delivered and the Underwriters
shall have received evidence satisfactory to the Underwriters
that each series of Shares is rated 'Aaa' by Xxxxx'x and
'AAA' by S&P as of the Closing Date, and there shall not have
been given any notice of any intended or potential
downgrading, or of any review for a potential downgrading, in
the rating accorded to the shares of each series of the
Shares by either Rating Agency.
(m) The Fund and the Manager shall have furnished to
you such further certificates, documents and opinions of
counsel as you shall reasonably request (including
certificates of officers of the Fund and the Manager).
All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof
only if they are satisfactory in form and substance to you
and your counsel acting in good faith.
Any certificate or document signed by any officer of the
Fund or the Manager and delivered to you or to Underwriters'
counsel, shall be deemed a representation and warranty by the
Fund or the Manager to each Underwriter as to the statements
made therein.
10. Effective Date of Agreement.
This Agreement shall become effective: (i) upon the execution
and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the
Shares may commence, when notification of the effectiveness of
the Registration Statement or such post-effective amendment has
been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by
the Fund by notifying you or by you, by notifying the Fund.
If any one or more of the Underwriters shall fail or
refuse to purchase Shares which it or they have agreed to
purchase hereunder and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
number of the Shares, each non-defaulting Underwriter shall be
34
obligated, severally, in the proportion which the aggregate
number of Shares set forth opposite its name in Schedule I hereto
bears to the aggregate number of Shares set forth opposite the
names of all non-defaulting Underwriters or in such other
proportion as you may specify in accordance with Section 11 of
the Xxxxxxx Xxxxx Xxxxxx Master Agreement Among Underwriters, to
purchase Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares
and arrangements satisfactory to you and the Fund for the
purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the
Fund are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which
does not result in termination of this Agreement, either you or
the Fund shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect to any such
default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I
hereto who, with your approval and the approval of the Fund,
purchases Shares which a defaulting Underwriter agreed, but
failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram,
telecopy or telephone but shall be subsequently confirmed by
letter.
11. Termination of Agreement.
This Agreement shall be subject to termination in your
absolute discretion, without liability on the part of any
Underwriter to the Fund or the Manager by notice to the Fund or
the Manager if prior to the Closing Date, (i) trading in the
Fund's Common Shares or securities generally on the NYSE,
American Stock Exchange, Nasdaq National Market or the Nasdaq
Stock Market shall have been suspended or materially limited,
(ii) additional material governmental restrictions not in force
on the date of this Agreement have been imposed upon trading in
securities generally or a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or state authorities or (iii) any outbreak or material
escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic
35
conditions, occurs, the effect of which is such as to make it, in
your judgment, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to
enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Fund
or the Manager by telegram, telecopy or telephone but shall be
subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs
and expenses and all other costs and expenses incident to the
performance by the Fund of its obligations hereunder: (a) the
preparation, printing or reproduction, filing (including, without
limitation, the filing fees prescribed by the 1933 Act, the 1940
Act and the Rules and Regulations) and distribution of the
Registration Statement (including exhibits thereto), the
Prospectus and each Prepricing Prospectus and all amendments or
supplements to any of them, (b) the printing (or reproduction)
and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Prepricing Prospectus, any sales
material and all amendments or supplements to any of them as may
be reasonably requested for use in connection with the offering
and sale of the Shares, (c) the preparation, printing,
authentication, issuance and delivery of certificates for the
Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance
and sale of such Shares, (d) the registrations or qualifications
of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of
counsel for the Underwriters relating to the preparation,
printing or reproduction and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and
qualification), (e) the fees and expenses of the Fund's
independent accountants, counsel for the Fund and of the auction
agent, (f) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and
supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and
delivered in connection with the offering of the Shares, (g) the
filing fees and the fees and expenses of counsel for the
Underwriters in connection with any filings required to be made
with the NASD and incurred with respect to the review of the
offering of the Shares by the NASD, (h) fees paid to the Rating
Agencies and (i) an amount equal to $36,275, payable on the
Closing Date to the Underwriters.
Notwithstanding the foregoing, in the event that the sale of
the Shares is not consummated pursuant to Section 2 hereof, the
Manager will pay the costs and expenses of the Fund set forth
36
above in this Section 12 (a) through (i), and reimbursements of
Underwriter expenses in connection with the offering shall be
made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters.
The names of the underwriters and numbers of Shares listed
opposite such names in the first paragraph under the caption
"Underwriting" in the Prospectus, as well as, under the same
caption, the third paragraph and the seventh paragraph constitute
the only information relating to any Underwriter furnished to the
Fund in writing by or on behalf of the Underwriters through you
as such information is referred to herein, expressly for use in
the Prospectus.
14. Miscellaneous.
Except as otherwise provided in Sections 5, 10 and 11 hereof,
notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (a) if to the Fund, Attn:
Xxxxxx X. Xxxxxx, Xx., c/o Alliance Capital Management L.P., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or if to the
Manager, Attn: Xxxxx X. Xxxxxx, Xx., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xx (b) if to you, at the
office of Xxxxxxx Xxxxx Xxxxxx Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Fund, the Manager, their trustees,
directors and officers and the other controlling persons referred
to in Section 8 hereof and their respective successors and
assigns to the extent provided herein and no other person shall
acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns"
as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
15. Applicable Law; Counterparts.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and
delivered on behalf of each party hereto.
37
Please confirm that the foregoing correctly sets forth the
agreement among the Fund and the Manager and the several
Underwriters.
Very truly yours,
ALLIANCE CALIFORNIA MUNICIPAL
INCOME FUND, INC.
By: ___________________________
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT L.P.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its general
partner
By:_____________________________
Name:
Title:
38
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
XXXXXXX XXXXX XXXXXX INC.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX XXXXXX INC.
By: ___________________________________
Title: Director
39
SCHEDULE I
Name of Underwriters Number of Shares
Xxxxxxx Xxxxx Xxxxxx Inc......... 972 Shares, Series M
972 Shares, Series T
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated............ 486 Shares, Series M
486 Shares, Series T
UBS Warburg LLC.................. 162 Shares, Series M
162 Shares, Series T
Total.......................... 1620 Shares, Series M
1620 Shares, Series T
40
00250209.AX9
