EXHIBIT (h)(1)
[ ] SHARES
ING CLARION REAL ESTATE
INCOME FUND
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
[ ], 2003
X.X. Xxxxxxx & Sons, Inc.
[Other Underwriters]
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
The undersigned, ING Clarion Real Estate Income Fund, a Delaware
statutory trust (the "Fund"), ING Clarion Real Estate Securities, Inc., a [ ]
corporation (the "Adviser"), ING Clarion Capital LLC, a [ ] limited liability
company (the "Sub-Adviser"), address you as Underwriters and as the
Representatives (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 [ ] shares
of common stock, $0.001 par value per share (the "Firm Shares"), of the Fund to
the several Underwriters. The Fund also proposes to sell upon the terms and
conditions contained in Section 2 hereof, up to [ ] additional common shares
(the "Additional Shares" which together with the Firm Shares are hereinafter
collectively referred to as the "Shares").
The Fund, the Adviser and the Sub-Adviser 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
Adviser dated [ ], 2003 (the "Management Agreement"), an administration
agreement with the Adviser dated [ ], 2003 (the "Administration Agreement"), a
Custodian Contract with [ ] ("[ ]") dated [ ], 2003 (the "Custodian Contract"),
and a Transfer Agency Agreement with [ ] dated [ ], 2003 (the "Transfer Agency
Agreement"). In addition, the Fund has adopted a dividend reinvestment plan (the
"Dividend Reinvestment Plan"), pursuant to which holders of Shares shall have
their dividends automatically reinvested in additional common shares of the Fund
unless they elect to receive such dividends in cash. Collectively, the
Management Agreement, Administration Agreement, Custodian Contract and Transfer
Agency Agreement are herein referred to as the "Fund Agreements." The Adviser
has entered into a Sub-Advisory Agreement with the Sub-Adviser dated [ ], 2003
(the "Sub-Advisory Agreement"). Collectively the Management Agreement,
Administration Agreement and Sub-Advisory Agreement are herein referred to as
the "Adviser 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.
333-107158 under the 1933 Act) (the "registration statement"), including a
prospectus and 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 (File No. 811-21404 under the 1940 Act, the "1940 Act
Notification"), 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 (a "Rule 462
registration statement"). 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 thereto, 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 Shares may commence, the term
"Registration Statement" as used in this Agreement means the Registration
Statement as amended by said post-effective amendment. If the Fund has filed a
Rule 462 registration statement, then the reference herein to the term
"Registration Statement" shall include such Rule 462 registration statement. The
term "Prospectus" as used in this Agreement means the prospectus and statement
of additional information in the forms included in the Registration Statement
or, if the prospectus and statement of additional information included in the
Registration Statement omit information in reliance on Rule 430A under the 1933
Act Rules and Regulations and such information is included in a prospectus and
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 and statement of additional information
in the forms 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 the Commission pursuant to Rule 497(h).
The term "Prepricing Prospectus" as used in this Agreement means the prospectus
and 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 and 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 terms "Registration Statement," "Prospectus" and "Prepricing
Prospectus" shall also include any financial statements and other information
included or incorporated by reference therein.
The Fund has furnished the Representatives 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, the Adviser and the Sub-Adviser 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 of $14.325 per Share (the "Price per Share"), the number of
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund, the Adviser and the
Sub-Adviser herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the Fund,
at the Price per Share, pursuant to an
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option (the "over-allotment option"), Additional Shares. The over-allotment
option may be exercised, in whole or in part, once by the Managing
Representative (as defined below) on behalf of the Underwriters, (or twice as
mutually agreed by the Fund and the Managing Representative) at any time prior
to 9:00 A.M., New York City time, on or before the 45th day after the date of
the Prospectus (or if such 45th day shall be a Saturday or a Sunday or a
holiday, on the next business day thereafter when the New York Stock Exchange
(the "NYSE") is open for trading). Additional Shares may be purchased solely for
the purpose of covering over-allotments made in connection with the offering of
the Shares. Upon any exercise in whole or in part of the over-allotment option,
upon the basis of the representations, warranties and agreements of the Fund,
the Adviser and the Sub-Adviser, 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 the number of Additional Shares as to
which the option is being exercised (subject to such adjustments as you may
determine to avoid fractional shares) which bears the same proportion to the
aggregate number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I (or such number of Firm Shares increased as set forth in Section 11
hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Adviser 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) Payment of the purchase price for the Firm Shares shall be
made to the Fund by Federal Funds wire transfer, against delivery of
the certificates, if any, (or, if no certificates, against notification
of electronic delivery) for the Firm Shares to the Representatives
through the facilities of the Depository Trust Company ("DTC") for the
respective accounts of the Underwriters. Delivery to the Underwriters
of and payment to the Fund for the Firm Shares and compensation of the
Underwriters with respect thereto shall be made at the offices of
[Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 4 Times Square, New York,
New York] at 9:00 a.m. New York City time on [ ], 2003 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date
may be varied by agreement between the Fund and X.X. Xxxxxxx & Sons,
Inc., as the managing representative (the "Managing Representative") of
the Underwriters.
(b) Delivery to the Underwriters of and payment to the Fund
for any Additional Shares to be purchased by the Underwriters and
compensation of the Underwriters with respect thereto shall be made in
the same manner and at the same office as for the Firm Shares at such
time on such date (an "Option Closing Date"), which may be the same as
the Closing Date, but shall in no event be earlier than the Closing
Date nor earlier than two nor later than seven business days after the
giving of the notice hereinafter referred to, as shall be specified in
a written notice from you on behalf of the Underwriters to the Fund of
the Underwriters' determination to purchase a number, specified in said
notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Additional Shares may be
varied by agreement between you and the Fund.
(c) The Shares shall be registered in such names and in such
denominations as the Underwriters shall request prior to 1:00 P.M., New
York City time (or such other time as the parties agree), (i) with
respect to the Firm Shares, on the first business day preceding the
Closing Date (ii) with respect to the Additional Shares, on the day of
the giving of the written notice in respect of such Additional Shares.
Certificates for shares, if any, will be made available to you in New
York City for inspection and packaging not later than 9:00 A.M., New
York City time, on
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the business day next preceding the Closing Date or any Option Closing
Date, as the case may be. The certificates, if any, evidencing the Firm
Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the
case may be, against payment of the purchase price therefor in
immediately available funds in the manner described above.
5. Agreements of the Fund, the Adviser and the Sub-Adviser. The Fund,
the Adviser and the Sub-Adviser, 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 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
certification pursuant to Rule 497(c) or (j), as the case may be, 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, (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
(iii) when 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, and (in the case of (iii)(B) below with respect
to communications received by the Adviser or the Sub-Adviser) the
Adviser or the Sub-Adviser, 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, the Prospectus or any Prepricing Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, 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 of 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), 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 the initiation or
contemplated initiation of any proceeding for any such purposes, (iii)
of receipt by (A) the Fund, any affiliate of the Fund or attorney of
the Fund of any other material communication from the Commission, or
(B) the Fund, the Adviser, the Sub-Adviser, any affiliate of the Fund,
the Adviser or the Sub-Adviser or attorney of the Fund, the Adviser or
the Sub-Adviser of any other material communication from the
Commission, 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, in the case of either clause (A) or (B), 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
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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) or this Agreement, any
of the Fund Agreements or the Adviser Agreements 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,
business prospects, properties, net assets or results of operations of
the Fund (other than as a result of changes in market conditions
generally or the market for real estate securities generally) or any
event which has or would reasonably be expected to have a material
adverse effect on the ability of the Adviser or the Sub-Adviser to
perform their respective obligations under this Agreement, the Advisory
Agreement or the Sub-Advisory Agreement, as the case may be, or of the
happening of any event (but as to each of the Fund, the Adviser and the
Sub-Adviser, an event known to that respective entity) which makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any Prepricing Prospectus or any Sales Material (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
Material (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 or any
sales material, 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 (or any amendment or supplement to any of the
foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory body.
If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending
the use of the Prospectus or any Sales Material (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, the
Adviser and the Sub-Adviser will use their best efforts to obtain the
withdrawal of such order at the earliest possible time. If at any time
any national securities exchange, any state securities commission, 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 or any Sales
Material (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, the Adviser and the Sub-Adviser will use their
respective best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, one signed
copy of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto 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, but without exhibits, as you may reasonably request.
(d) Within five years from the date hereof, the Fund will not
(i) file any amendment (except any post-effective amendment required by
Rule 8b-16 of the 1940 Act which is filed with the Commission after the
later of (x) one year from the date of this Agreement or (y) the date
on which the distribution of the Shares is completed) to the
registration statement or the Registration Statement or make any
amendment or supplement to the Prospectus, any Prepricing Prospectus or
any Sales Material (or any amendment or supplement to any of the
foregoing) of which you shall not previously have been advised or (with
respect to amendments filed within two years from the date hereof) to
which you shall reasonably object within two business days 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 of Shares by any Underwriter or dealer, file any
information,
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documents or reports pursuant to the 1933 Act, the 1940 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, 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 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 reasonably possible and thereafter from time to time, for such
period as in the opinion of counsel for the Underwriters a prospectus
is required by 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 Registration Statement or the
Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading or if it is necessary to supplement or amend the
Registration Statement or the Prospectus to comply with the 1933 Act,
the 1940 Act, the Rules and Regulations or any other applicable law,
rule or regulation, the Fund will forthwith notify you of such event,
prepare and, subject to the provisions of paragraph (d) above, promptly
file with the Commission an appropriate amendment or supplement thereto
and will furnish as promptly as reasonably possible to the Underwriters
and dealers, without charge, such number of copies thereof as they may
reasonably request; provided, however, that if such -------- amendment
or supplement is required solely as a result of a material misstatement
in or material omission from the information furnished in writing by or
on behalf of an Underwriter to the Fund, the Adviser or the Sub-Adviser
expressly for use in the Registration Statement or the Prospectus (such
information, as described in Section 9(h) of this Agreement, being
referred to herein as the "Underwriter Information"), then the Fund
shall deliver such amendment or supplement at cost.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with any registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers as may be required under the applicable 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 registration or qualification;
provided, however, that the foregoing shall not apply to the extent
that the Shares are "covered securities" that are exempt from state
regulation of securities offerings pursuant to Section 18 of the 1933
Act.
(h) As soon as practicable, but in no event later than the
last day of the 18th full calendar month following the calendar quarter
in which the effective date of the Registration Statement falls, the
Fund will make generally available to its security holders an earnings
statement, which
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need not be audited, 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
sub-item 6 of Item 33 of Part C of the Registration Statement.
(j) During the period of three years hereafter, the Fund will
furnish or will have furnished to you as soon as available, a copy of
each report of the Fund mailed to shareholders or filed with the
Commission (other than reports on Form N-SAR) or furnished to the NYSE.
(k) If this Agreement shall terminate or be terminated after
execution pursuant to any provisions hereof (other than pursuant to the
second paragraph of Section 11 hereof or by notice given by you
terminating this Agreement pursuant to Section 12 hereof) or if this
Agreement shall be terminated by the Underwriters because of any
inability, failure or refusal on the part of the Fund, the Adviser or
the Sub-Adviser to comply with any material terms in this Agreement or
because any of the conditions in Section 10 of this Agreement required
to be complied with or fulfilled by them are not satisfied, then the
Fund, the Adviser and the Sub-Adviser, jointly and severally, agree to
reimburse the Representatives for all out-of-pocket expenses not to
exceed the amounts set forth in Section 13 of this Agreement (including
reasonable fees and expenses of counsel for the Underwriters) incurred
by you in connection herewith.
(l) The Fund will direct the investment of the net proceeds of
the offering of the Shares (i) in accordance with the description set
forth in the Prospectus and (ii) 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 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) The Fund will use its best efforts to have the Shares
listed, subject to notice of issuance, on the NYSE concurrently with
the effectiveness of the Registration Statement and to comply with the
rules or regulations of such exchange.
(o) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund, the Fund will not sell,
contract to sell or otherwise dispose of, any common stock of the Fund
or any securities convertible into or exercisable or exchangeable for
common stock of the Fund or grant any options or warrants to purchase
common stock of the Fund, for a period of 180 days after the date of
the Prospectus, without the prior written consent of the
Representatives.
(p) Except as stated in this Agreement and in the Prospectus,
none of the Fund, the Adviser or the Sub-Adviser will 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 in violation of federal securities laws.
(q) The Fund will direct the investment of the proceeds of the
offering of the Shares so as to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), to qualify as a regulated investment company under the Code.
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6. Representations and Warranties of the Fund, the Adviser and the
Sub-Adviser. The Fund, the Adviser and the Sub-Adviser, 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 or filed pursuant to Rule 497 of the 1933 Act
Rules and Regulations, complied when so filed in all material respects
with the provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that this representation and warranty does not
apply to statements in or omissions from the Prepricing Prospectus (and
any amendment or supplement thereto) made in reliance upon and in
conformity with the Underwriter Information) and the Commission has not
issued any order preventing or suspending the use of the Prepricing
Prospectus.
(b) The registration statement, in the form in which it was
originally filed, 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, 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 each of the Registration Statement and
the Prospectus (or any supplement or amendment to either of them) did
not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading; except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement and
the Prospectus (and any amendment or supplement to either of them) made
in reliance upon and in conformity with the Underwriter Information.
(c) All the outstanding shares of capital stock of the Fund
have been duly authorized and validly issued, are fully paid and
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 nonassessable and free
of any preemptive or similar rights; and the capital stock of the Fund
conforms in all material respects to the description thereof in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them). Except for the Shares and the shares of
common stock issued in accordance with Section 14(a) of the 1940 Act,
no other shares of capital stock are issued or outstanding and the
capitalization of the Fund conforms in all material respects to the
description thereof in the Registration Statement and the Prospectus
(or any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in
good standing as a statutory trust under the laws of the State of
Delaware, with full trust 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 or would not have a material,
adverse effect on the condition (financial or other), business,
business prospects, properties, net assets or results of operations of
(a "Material Adverse Effect") the Fund. The Fund has no subsidiaries.
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(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 (and any
amendment or supplement to either of them) but are not described
therein 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 described therein or filed as an exhibit thereto as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not (i) in violation of its Declaration of
Trust ("Declaration"), by-laws or other organizational documents, (ii)
in violation of any law, ordinance, administrative or governmental rule
or regulation applicable to the Fund or of any decree of the
Commission, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any other
agency or any body or official having jurisdiction over the Fund or
(iii) in breach or default in the performance of any obligation,
agreement or condition contained in any 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, except, in the case of (ii) and (iii)
above, for violations, breaches or defaults that do not or would not
have, either individually or in the aggregate, a Material Adverse
Effect on the Fund.
(g) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or order of or registration or filing with the
Commission, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body, administrative
agency or other governmental body, agency or official having
jurisdiction over the Fund (except (A) such as have been obtained or
made prior to the date of this Agreement, (B) for compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement and (C) for
compliance with the filing requirements of the NASD Division of
Corporate Finance) or conflicts or will conflict with or constitutes or
will constitute a breach of the Declaration, bylaws, or other
organizational documents of the Fund or (ii) (A) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under any agreement, indenture, lease or other instrument to
which the Fund is a party or by which it or any of its properties may
be bound or (B) violates or will violate any 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 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 except, in the case of
(ii) above, for conflicts, breaches, defaults, violations or
encumbrances that do not or would not have, either individually or in
the aggregate, a Material Adverse Effect on the Fund. As of the date
hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency that has or
would have, either individually or in the aggregate, a Material Adverse
Effect on the Fund.
(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, (i)
there has been no change that has or would have a Material Adverse
Effect on the Fund (other than those in the ordinary course of business
as described in the Prospectus); (ii) there have been no transactions
entered into by the Fund other than those in the ordinary course of its
business or as described in the Prospectus (and any amendment or
supplement thereto); and
9
(iii) 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) [ ], who have audited the Statement of Assets and
Liabilities included in, and whose report appears in, the Registration
Statement and the Prospectus (and any amendment or supplement to either
of them), are independent public accountants with respect to the Fund
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 or incorporated by reference 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 1933 Act Rules and Regulations, has taken all action required
to be taken by it 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 each of the Fund Agreements have been duly executed and delivered
by the Fund and (assuming due and valid authorization, execution and
delivery by the other parties hereto and thereto) this Agreement and
each Fund Agreement constitutes the valid and legally binding agreement
of the Fund, enforceable against the Fund in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification
that the enforceability of the Fund's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in a proceeding
in equity or at law).
(m) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus (or 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 debt, liability or obligation, direct or contingent, and
there has not been any change in the capital stock or capitalization 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 (the "Red
Xxxxxxx Preliminary Prospectus"), the Prospectus and the Sales Material
(or any other material, if any, permitted by the 1933 Act, the 1940 Act
or the Rules and Regulations).
10
(o) (i) 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); (ii) the Fund has fulfilled and performed all its 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 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, (iii) 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; except where the
failure to obtain or perform its obligations with respect to such
permits, or the restrictions set forth in such permits, as set forth in
clauses (i), (ii) and (iii), either individually or in the aggregate,
does or would not have a Material Adverse Effect on the Fund.
(p) The Fund will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with the Board of Trustees'
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 and fee accruals, to maintain accountability for assets and to
maintain 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 the Board of Trustees' 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 conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor,
licensee of, or otherwise require it to have the right to use, any
patents, patent licenses, trademarks, service marks or trade names
(collectively, "Intellectual Property") which it does not own, possess,
license or otherwise have the right to use, except where the failure to
own, possess, license or otherwise have the right to use such
Intellectual Property, individually or in the aggregate, does or would
not have a Material Adverse Effect on the Fund.
(r) 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
could cause or result in or which will constitute stabilization or
manipulation of the price of the Shares in violation of federal
securities laws and, to the Fund's knowledge, no such action has been,
or will be, taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act and the
Rules and Regulations 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 all times
through the date hereof the 1940 Act Notification conformed in all
material respects with all applicable provisions of the 1940 Act and
the Rules and Regulations; no order of suspension or revocation of such
registration under the 1940 Act and the Rules and Regulations has been
issued or proceedings therefor initiated or, to the knowledge of the
Fund, threatened by the Commission. The provisions of the Declaration,
and the investment policies and restrictions described in each of the
Registration Statement and the Prospectus, comply in all material
respects with the requirements of the 1940 Act and the Rules and
Regulations.
11
(t) All advertising, sales literature, "prospecting letters,"
"prospectus wrappers," envelopes, prospectuses omitted from the
Registration Statement pursuant to the 1933 Act Rules and Regulations
or other promotional material prepared or authorized in writing by the
Fund or the Adviser for use or distribution to the public for use in
connection with the offering and sale of the Shares (including the
client brochure and the broker flyer each filed with the NASD on March
17, 2003) (collectively, "Sales Material") complied and comply in all
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and
no Sales Material 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 (except
that this representation and warranty does not apply to statements in
or omissions from the Sales Material made in reliance upon and in
conformity with the Underwriter Information).
(u) Each of the Fund Agreements complies in all material
respects with all applicable provisions of the 1933 Act, the 1940 Act,
the Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and the rules and regulations of the
Commission promulgated under the Advisers Act (the "Advisers Act Rules
and Regulations").
(v) No holder of any security of the Fund has any right to
require registration of any Shares, capital stock or any other security
of the Fund because of the filing of the registration statement or
consummation of the transactions contemplated by this Agreement.
(w) The Fund, the Adviser and the Sub-Adviser intend 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.
(x) None of the promotional material for use by brokers in
connection with the marketing of the Shares (including any "broker
kits," "road show slides," "road show scripts," "broker post-cards" and
"broker reference cards" authorized in writing by or prepared by the
Fund or the Adviser for use in connection with the offering and sale of
the Shares (collectively, "Broker 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 (except that
this representation and warranty does not apply to statements in or
omissions from the Broker Material made in reliance upon and in
conformity with the Underwriter Information) and no Broker Material was
or has been made available by the Fund, the Adviser or the Sub-Adviser
by means of an Internet web site or similar electronic means.
(y) The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus or the Prospectus.
(z) Except as disclosed in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them), to the
Fund's knowledge, after due inquiry, no trustee of the Fund is an
"interested person" (as defined in the 0000 Xxx) of the Fund or an
"affiliated person" (as defined in the 0000 Xxx) of any Underwriter
listed in Schedule I hereto.
(aa) The Shares have been approved for listing on the NYSE,
subject to official notice of issuance, and that the Fund's
registration statement on Form 8-A under the 1934 Act has become
effective.
12
7. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser is a corporation duly organized and validly
existing in good standing under the laws of the [ ] of [ ], with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in each of the Registration
Statement and the Prospectus (or any amendment or supplement to either
of them) and is duly registered and qualified to conduct business and
is in good standing in each jurisdiction or place where the nature of
its properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does or would not have a Material Adverse Effect on the Adviser.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or
the 1940 Act Rules and Regulations from acting under the Management
Agreement for the Fund as contemplated by the Registration Statement or
the Prospectus (or any amendment or supplement to either of them).
There does not exist any proceeding which, if determined adversely with
respect to the Adviser, does or would have a material and adverse
effect on the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or,
to the knowledge of the Adviser, threatened against the Adviser that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are
not described as required or that, if determined adversely with respect
to the Adviser, does or would have a Material Adverse Effect on the
Adviser or does or would have a material and adverse effect on the
ability of the Adviser to perform its obligations under this Agreement
or any of the Adviser Agreements.
(d) Neither the execution, delivery or performance of this
Agreement or any of the Adviser Agreements, nor the consummation by the
Adviser of the transactions contemplated hereby or thereby (i) requires
the Adviser to obtain any consent, approval, authorization or other
order of, or registration or filing with, the Commission, any state
securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official having jurisdiction over the
Adviser or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the certificate of
incorporation or bylaws, or other organizational documents of the
Adviser or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any agreement, indenture,
lease or other instrument to which the Adviser is a party or by which
the Adviser or any of its properties may be bound, or violates or will
violate any statute, law, regulation or judgment, injunction, order or
decree applicable to the Adviser or any of its properties or will
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Adviser pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Adviser is
subject, except in any case under clause (i) or (ii) as does or would
not have a Material Adverse Effect on the Adviser or does or would have
a material and adverse effect on the ability of the Adviser to perform
its obligations under this Agreement or any of the Adviser Agreements.
The Adviser is not subject to any order of any court or of any
arbitrator, regulatory body, administrative agency or other
governmental body, agency or official that would have a Material
Adverse Effect on the Adviser or does or would have a material and
adverse effect on the ability of the Adviser to perform its obligations
under this Agreement or any of the Adviser Agreements.
13
(e) The Adviser has full power and authority to enter into
this Agreement and each of the Adviser Agreements; the execution and
delivery of and the performance by the Adviser of its obligations under
this Agreement and the Adviser Agreements have been duly and validly
authorized by the Adviser; and this Agreement and each of the Adviser
Agreements have been duly executed and delivered by the Adviser and
(assuming due and valid authorization, execution and delivery by the
other parties hereto and thereto) this Agreement and each Adviser
Agreement constitutes the valid and legally binding agreement of the
Adviser, enforceable against the Adviser in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification
that the enforceability of the Adviser's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in a proceeding
in equity or at law).
(f) The Adviser has the financial resources necessary for the
performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) or under this Agreement or any of the
Adviser Agreements.
(g) The description of the Adviser in the Registration
Statement and the Prospectus (or any amendment or supplement to either
of them) complied and comply in all material respects with the
provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules
and Regulations and the Advisers Act Rules and Regulations; and such
description and the statements attributable to the Adviser in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which
they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them), except as otherwise stated therein,
there has been no material adverse change in the condition (financial
or other), business, properties, net assets or results of operations or
business prospects of the Adviser, whether or not arising from the
ordinary course of business that does or would have a Material Adverse
Effect on the Adviser or does or would have a material and adverse
effect on the ability of the Adviser to perform its obligations under
this Agreement or any of the Adviser Agreements.
(i) (i) The Adviser has such licenses, permits, and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and to conduct its business in the
manner described in the Prospectus (and any amendment or supplement
thereto); (ii) the Adviser has fulfilled and performed all its
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 impairment of the rights
of the Adviser 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, (iii) 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
Adviser; except where the failure to obtain or perform its obligations
with respect to such permits, or the restrictions set forth in such
permits, as set forth in clauses (i), (ii) and (iii), either
individually or in the aggregate, does or would have a Material Adverse
Effect on the Adviser or does or would have a material and adverse
effect on the ability of the Adviser to perform its obligations under
this Agreement or any of the Adviser Agreements.
14
(j) Each of the Adviser Agreements comply in all material
respects with the applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Adviser has not taken
and will not take, directly or indirectly, any action designed to or
which could cause or result in or which will constitute stabilization
or manipulation of the price of the Shares in violation of federal
securities laws and, to the Adviser's knowledge, no such action has
been, or will be, taken by any affiliates of the Adviser.
8. Representations and Warranties of the Sub-Adviser. The Sub-Adviser
represents and warrants to each Underwriter as follows:
(a) The Sub-Adviser is a limited liability company duly formed
and validly existing in good standing under the laws of the [ ] of [ ],
with full limited liability company power and authority to own, lease
and operate its properties and to conduct its business as described in
each of the Registration Statement and the Prospectus (or any amendment
or supplement to either of them) and is duly registered and qualified
to conduct business and is in good standing in each jurisdiction or
place where the nature of its properties or conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does or would not have a Material Adverse
Effect on the Sub-Adviser.
(b) The Sub-Adviser is duly registered with the Commission as
an investment adviser under the Advisers Act and is not prohibited by
the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations
or the 1940 Act Rules and Regulations from acting under this Agreement
or the Sub-Advisory Agreement for the Fund as contemplated by the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them). There does not exist any proceeding
which, if determined adversely with respect to the Sub-Adviser, does or
would have a material and adverse effect on the registration of the
Sub-Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or,
to the knowledge of the Sub-Adviser, threatened against the Sub-Adviser
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are
not described as required or that, if determined adversely with respect
to the Sub-Adviser, does or would have a Material Adverse Effect on the
Sub-Adviser or does or would have a material and adverse effect on the
ability of the Sub-Adviser to perform its obligations under this
Agreement or the Sub-Advisory Agreement.
(d) Neither the execution, delivery or performance of this
Agreement or the Sub-Advisory Agreement, nor the consummation by the
Sub-Adviser of the transactions contemplated hereby or thereby (i)
requires the Sub-Adviser to obtain any consent, approval, authorization
or other order of, or registration or filing with, the Commission, any
state securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official having jurisdiction over the
Sub-Adviser or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the certificate of
incorporation or bylaws, or other organizational documents of the
Sub-Adviser or (ii) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any agreement,
indenture, lease or other instrument to which the Sub-Adviser is a
party or by which the Sub-Adviser or any of its properties may be
bound, or violates or will violate any statute, law, regulation or
judgment, injunction, order or decree applicable to the Sub-Adviser or
any of its properties or will result in the creation or imposition of
any lien, charge or encumbrance upon any
15
property or assets of the Sub-Adviser pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Sub-Adviser is
subject, except in any case under clause (i) or (ii) as would not have
a Material Adverse Effect on the Sub-Adviser or on the ability of the
Sub-Adviser to perform its obligations under this Agreement or the
Sub-Advisory Agreement. The Sub-Adviser is not subject to any order of
any court or of any arbitrator, regulatory body, administrative agency
or other governmental body, agency or official that does or would have
a Material Adverse Effect on the Sub-Adviser or does or would have a
material and adverse effect on the ability of the Sub-Adviser to
perform its obligations under this Agreement or the Sub-Advisory
Agreement.
(e) The Sub-Adviser has full power and authority to enter into
this Agreement and the Sub-Advisory Agreement; the execution and
delivery of and the performance by the Sub-Adviser of its obligations
under this Agreement and the Sub-Advisory Agreement have been duly and
validly authorized by the Sub-Adviser; and this Agreement and the
Sub-Advisory Agreement have been duly executed and delivered by the
Sub-Adviser and (assuming due and valid authorization, execution and
delivery by the other parties hereto and thereto) this Agreement and
the Sub-Advisory Agreement constitutes the valid and legally binding
agreement of the Sub-Adviser, enforceable against the Sub-Adviser in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the
Sub-Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(f) The Sub-Adviser has the financial resources necessary for
the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) or under this Agreement and the
Sub-Advisory Agreement.
(g) The description of the Sub-Adviser in the Registration
Statement and the Prospectus (or any amendment or supplement to either
of them) complied and comply in all material respects with the
provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules
and Regulations and the Advisers Act Rules and Regulations; and such
description and the statements attributable to the Sub-Adviser in the
Registration Statement and the Prospectus (or any amendment or
supplement to either of them) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which
they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them), except as otherwise stated therein,
there has been no material adverse change in the condition (financial
or other), business, properties, net assets or results of operations or
business prospects of the Sub-Adviser, whether or not arising from the
ordinary course of business that does or would have a Material Adverse
Effect on the Sub-Adviser or does or would have a material and adverse
effect on the ability of the Sub-Adviser to perform its obligations
under this Agreement or the Sub-Advisory Agreement.
(i) (i) The Sub-Adviser has such licenses, permits, and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and to conduct its business in the
manner described in the Prospectus (and any amendment or supplement
thereto);
16
(ii) the Sub-Adviser has fulfilled and performed all its 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 impairment of the rights of the
Sub-Adviser 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, (iii) 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
Sub-Adviser; except where the failure to obtain or perform its
obligations with respect to such permits, or the restrictions set forth
in such permits, as set forth in clauses (i), (ii) and (iii), either
individually or in the aggregate, does or would have a Material Adverse
Effect on the Sub-Adviser or does or would have a material and adverse
effect on the ability of the Sub-Adviser to perform its obligations
under this Agreement or the Sub-Advisory Agreement.
(j) The Sub-Advisory Agreement complies in all material
respects with the applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(k) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Sub-Adviser has not
taken and will not take, directly or indirectly, any action designed to
or which could cause or result in or which will constitute
stabilization or manipulation of the price of the Shares in violation
of federal securities laws and, to the Sub-Adviser's knowledge, no such
action has been, or will be, taken by any affiliates of the
Sub-Adviser.
9. Indemnification and Contribution.
(a) The Fund, the Adviser and the Sub-Adviser, 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 Underwriter Information); provided, however, that
the foregoing indemnification contained in this paragraph (a) with
respect to the Red Xxxxxxx Preliminary Prospectus (or any amendment or
supplement thereto) shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising
from the sale of the Shares by such Underwriter to any person if it is
shown that a copy of any such amendment or supplement to the Red
Xxxxxxx Preliminary Prospectus or of the Prospectus (which term as used
in this proviso shall not include any statement of additional
information unless specifically requested by such person) was not
delivered or sent to such person within the time required by the 1933
Act and the 1933 Act Rules and Regulations and the untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact contained in the Red Xxxxxxx Preliminary Prospectus was corrected
in the supplement or amendment to the Red Xxxxxxx Preliminary
Prospectus or in the Prospectus, provided that the Fund has delivered
17
such supplements or amendments or the Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit proper
delivery or sending. The foregoing indemnity agreement shall be in
addition to any liability which the Fund, the Adviser or the
Sub-Adviser 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, the Adviser or the
Sub-Adviser, such Underwriter or such controlling person shall promptly
notify the Fund, the Adviser or the Sub-Adviser and the Fund, the
Adviser or the Sub-Adviser 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, the Adviser or the Sub-Adviser have agreed
in writing to pay such fees and expenses, (ii) the Fund, the Adviser or
the Sub-Adviser 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, the
Adviser or the Sub-Adviser and such Underwriter or such controlling
person shall have been advised by its counsel that representation of
such indemnified party and the Fund, the Adviser or the Sub-Adviser 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, the Adviser and the
Sub-Adviser 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, the
Adviser and the Sub-Adviser 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 the Representatives and that, subject to the
requirements of 1940 Act Release No. 11330 and Section 17(i) of the
1940 Act, all such fees and expenses shall be reimbursed promptly as
they are incurred. The Fund, the Adviser and the Sub-Adviser shall not
be liable for any settlement of any such action, suit or proceeding
effected without the written consent of the Fund, the Adviser or the
Sub-Adviser (whether or not the fund, the Adviser or the Sub-Adviser
are actual or potential parties to such action, suit or proceeding),
but if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the
Fund, the Adviser and the Sub-Adviser 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, the Adviser and the Sub-Adviser,
their directors, trustees, members or managers, any officers of the
Fund who sign the Registration Statement and any person who controls
the Fund, the Adviser or the Sub-Adviser 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, the Adviser and the Sub-Adviser
to each Underwriter, but only with respect to the Underwriter
Information relating to such Underwriter. If any action, suit or
proceeding shall be brought against the Fund, the Adviser or the
Sub-Adviser, any of their directors, trustees, members or managers, any
such officer or any such controlling person, based on the Registration
Statement, the Prospectus or any Prepricing
18
Prospectus (or any amendment or supplement thereto) 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 each of the Fund, the Adviser and the Sub-Adviser by paragraph (b)
above (except that if the Fund, the Adviser or the Sub-Adviser 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, the Adviser and the
Sub-Adviser, their directors, trustees, managers or members, 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 9 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, the
Adviser and the Sub-Adviser on the one hand (treated jointly for this
purpose as one person) and the Underwriters on the other 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 reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Fund, the Adviser
and the Sub-Adviser on the one hand (treated jointly for this purpose
as one person) and of the Underwriters on the other 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,
the Adviser and the Sub-Adviser on the one hand (treated jointly for
this purpose as one person) and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Fund bear to the
total underwriting discounts and commissions received by the
Underwriters, in each case, as set forth in the table on the cover page
of the Prospectus. The relative fault of the Fund, the Adviser and the
Sub-Adviser on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other 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, the
Adviser and the Sub-Adviser on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Fund, the Adviser, the Sub-Adviser and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 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 investigating any
claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 9, 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
19
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares set forth opposite their
names in Schedule I (or such number of Shares increased as set forth in
Section 11 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 9 shall, subject to the requirements of
Release No. 11330 and Section 17(i) of the 1940 Act, 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 9 and the
representations and warranties of each of the Fund, the Adviser and the
Sub-Adviser 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 Adviser, the Sub-Adviser or their directors, trustees,
managers, members, officers or any person controlling the Fund, the
Adviser or the Sub-Adviser, (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 Adviser or the
Sub-Adviser or their directors, trustees, managers, members, officers
or any person controlling the Fund, the Adviser or the Sub-Adviser
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
(h) The Fund, the Adviser and the Sub-Adviser each acknowledge
that the information referenced in that certain letter from X.X.
Xxxxxxx & Sons, Inc., on behalf of the several Underwriters, addressed
to the Fund, the Adviser and the Sub-Adviser, dated the date hereof,
contains the only Underwriter Information.
(i) The indemnification provisions of this Section 9 that are
applicable to the Fund are subject to any applicable limitations and
provisions of Section 17(i) of the 1940 Act.
10. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Shares hereunder are subject to the accuracy of
and compliance with the representations, warranties and agreements of and by
each of the Fund, the Adviser and the Sub-Adviser contained herein on and as of
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 and, with respect to any Additional Shares, any Option Closing Date
(each, a "Condition Compliance Date" and collectively, the "Condition Compliance
Dates"); to the accuracy and completeness of all statements made by the Fund,
the Adviser, the Sub-Adviser or any of their respective officers in any
certificate delivered to the Representatives or their counsel pursuant to this
Agreement on any Condition Compliance Date, and to the following conditions
(each of which shall be satisfied as of each of the Condition Compliance Dates):
(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
20
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 and the 1933 Act Rules and Regulations shall have
been timely made; no order pursuant to Section 8(e) of the 1940 Act
shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Fund, the Adviser 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) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change that does or would have a Material Adverse Effect on
the Fund, the Adviser or the Sub-Adviser (in each case not contemplated
by the Prospectus) or (ii) any event or development relating to or
involving the Fund, the Adviser or the Sub-Adviser which makes any
statement made in the Prospectus 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 in order to
state a material fact required by the 1933 Act, the 1940 Act or the
Rules and Regulations or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, make it impracticable or
inadvisable to continue with the offering of the Shares.
(c) That you shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Fund, dated the Closing Date and addressed to you, as the
Representatives of the several Underwriters, in substantially the form
attached hereto as Exhibit A.
(d) That you shall have received on the Closing Date an
opinion of [ ], counsel for the Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, in
substantially the form attached hereto as Exhibit B.
(e) That you shall have received on the Closing Date an
Opinion of [ ], counsel for the Sub-Adviser, dated the Closing Date and
addressed to you, as the Representatives of the several Underwriters,
in substantially the form attached hereto as Exhibit C.
(f) That you shall have received on the Closing Date (i) an
opinion of Xxxxxxxx Chance US LLP, and (ii) a letter from [ ], each
dated the Closing Date and addressed to you, as the Representatives of
the several Underwriters, with respect to such matters as you may
require, and the Fund, the Adviser, the Sub-Adviser and their
respective counsel shall have furnished to such counsel such documents
as they may request for the purpose of enabling them to pass upon such
matters.
(g) That you shall have received letters addressed to you, as
the Representatives of the several Underwriters and dated each of the
date hereof and the Closing Date, [ ], independent auditors,
substantially in the forms attached hereto as Exhibit D. You also must
receive on each Closing Date a signed letter from such accountants,
dated as of such Closing Date, confirming on the basis of a review in
accordance with the procedures set forth in their letter that nothing
has come to their attention during the period from a date not more than
five business days before the date of this Underwriting Agreement,
specified in the letter, to a date not more than five business days
before such Closing Date, that would require any change in their letter
referred to in the foregoing sentence.
21
(h) (i) No stop order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the
Prospectus (or any amendment or supplement to any of the foregoing) 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 Adviser or the Sub-Adviser or,
with respect to the transactions contemplated by the Prospectus (or any
amendment or supplement thereto) and this Agreement, may be pending
before or, to the knowledge of the Fund, the Adviser, the Sub-Adviser
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 Representatives, (ii) there shall not have
been any change in the capital stock of the Fund nor any increase in
debt of the Fund from that set forth in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) and
the Fund shall not have sustained any material liabilities or
obligations, direct or contingent, other than those reflected in or
contemplated by the Registration Statement or the Prospectus (or any
amendment or supplement to either of them), (iii) since the date of the
Prospectus, there shall not have been any material, adverse change in
the condition (financial or other) business, business prospects,
properties, net assets or results of operations of the Fund, the
Adviser or the Sub-Adviser, (iv) none of the Fund, the Adviser or the
Sub-Adviser shall have sustained any material loss or interference with
their businesses from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them), and (v) all of the
representations and warranties of each of the Fund, the Adviser or the
Sub-Adviser contained in this Agreement shall be true and correct on
and as of the date hereof and as of the respective Condition Compliance
Date as if made on and as of such Condition Compliance Date.
(i) That none of the Fund, the Adviser, or the Sub-Adviser
shall have failed at or prior to the respective Condition Compliance
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 such Condition Compliance Date.
(j) That you shall have received on the Closing Date a
certificate, dated such date, of each of the chief executive officer
and chief financial officer of the Fund, and of the President (or a
Vice President) and Treasurer (or an Assistant Treasurer) of each of
the Adviser and the Sub-Adviser 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), the representations and
warranties of the Adviser (with respect to the certificates from such
officers of the Adviser), and the representations and warranties of the
Sub-Adviser (with respect to the certificates from such officers of the
Sub-Adviser) 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 change that does or would have a Material Adverse Effect
on the Fund (with respect to the certificates from such Fund officers)
or the Adviser (with respect to the certificates from such officers of
the Adviser) or the Sub-Adviser (with respect to the certificates from
such officers of the Sub-Adviser), (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 Adviser
(with respect to the certificates from such officers of the Adviser) or
the Sub-Adviser (with respect to the certificates from such officers of
the Sub-Adviser) has been issued and no
22
proceedings for any such purpose are pending before or, to the
knowledge of such officers, threatened by the Commission or any court
or other regulatory body, 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), the Adviser (with respect to certificates from
such officers of the Adviser) and the Sub-Adviser(with respect to the
certificates from such officers of the Sub-Adviser) has performed and
complied with all agreements that this Agreement require it to perform
by such Closing Date and (vi) 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 increase in the debt of the Fund from that
set forth in the Prospectus (or 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 (or
any amendment or supplement thereto).
(k) That the Fund, the Adviser and the Sub-Adviser shall have
furnished to you such further certificates and documents as you shall
reasonably request.
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, the
Adviser or the Sub-Adviser and delivered to you, as the Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a representation and
warranty by the Fund, the Adviser or the Sub-Adviser to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund, the Adviser and the Sub-Adviser
contained herein on and as of the Option Closing Date as though made on any
Option Closing Date, (ii) satisfaction on and as of any Option Closing Date of
the conditions set forth in this Section 10 except that, if any Option Closing
Date is other than the Closing Date, the certificates, opinions and letters
referred to in Sections 10 (c), (d), (e), (f), (g) and (k) and this paragraph
shall be dated the Option Closing Date in question and the opinions called for
by Sections 10 (c), (d), (e), (f) and (g) shall be revised to reflect the sale
of Additional Shares and (iii) the absence of circumstances on or prior to the
Option Closing Date which would permit termination of this Agreement pursuant to
Section 12 hereof if they existed on or prior to the Closing Date.
11. 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 the Registration
Statement or such post-effective amendment has become effective. 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 obligated, severally, in
the proportion which the aggregate number of Shares set forth opposite its name
in Schedule I hereby 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 7 of the X.X. Xxxxxxx Master Agreement
23
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 11 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. 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 Adviser by notice to the Fund or the Adviser if
at any time at or prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Additional Shares), as
the case may be, (i) trading in any securities of the Fund has been suspended or
materially limited by the Commission or the New York Stock Exchange or such
other national securities exchange upon which the Fund's securities trade or
trading in securities generally on the New York Stock Exchange, American Stock
Exchange, Nasdaq National Market or the Nasdaq Stock Market shall have been
suspended or limited or minimum or maximum prices shall have been established or
required by such exchanges, the Commission, NASD or other governmental
authority, (ii) additional 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 shall have been declared by
Federal or any state's authorities or (iii) there has occurred any outbreak or
material escalation of hostilities or other international or domestic calamity,
crisis or change or development in political, financial, economic, legal or
regulatory conditions or markets, 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, the Adviser
or the Sub-Adviser by telegram, telecopy or telephone but shall be subsequently
confirmed by letter.
13. 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 or registration fees prescribed by
the 1933 Act, the 1934 Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits thereto), the
Prospectus, each Prepricing Prospectus and the 1940 Act Notification and all
amendments or supplements to any of them, (b) the printing (or reproduction) and
delivery to the Underwriters (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, except as provided in Section 5(f) of this
Agreement) 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 (if any) for the Shares, including any
stamp taxes and transfer agent and registrar fees payable in connection
24
with the original issuance and sale of such Shares, (d) the registrations or
qualifications of the Shares for offer and sale thereof, if any, as are required
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 transfer agent,
(f) the printing (or reproduction) and delivery of this Agreement, any dealer
agreements, the preliminary and supplemental Blue Sky Memoranda (if any) 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 National Association of Securities Dealers,
Inc. (the "NASD") and incurred with respect to the review of the offering of the
Shares and the use of any Sales Materials by the NASD, which fees and expenses
of counsel, together with the fees, expenses and disbursements of counsel set
forth in paragraph (d) of this Section 13 above, shall not exceed $15,000,
exclusive of NASD and state filing fees, (h) the transportation, lodging,
graphics and other expenses of the Fund and its officers related to the
preparation for and participation by the Fund and its officers in the roadshow,
(i) the listing of the Shares on the NYSE and (j) an amount equal to the greater
of (1) $50,000 and (2) $.005 per Share payable on the Closing Date to the
Representatives in partial reimbursement of their expenses (but not including
reimbursement for the cost of one tombstone advertisement in a newspaper that is
one-quarter of a newspaper page or less in size) in connection with the
offering.
Notwithstanding the foregoing, in the event that the sale of the Shares
is not consummated pursuant to Section 2 hereof, the Adviser or the Sub-Adviser
will pay the costs and expenses of the Fund set forth above in this Section
13(a) through (i), and reimbursements of Underwriter expenses in connection with
the offering shall be made in accordance with Section 5(k) hereof.
14. Miscellaneous. Except as otherwise provided in Sections 5, 11 and
12 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) [if to the Fund, the Adviser or the
Sub-Adviser, ING Clarion Real Estate Income Fund, 000 Xxxxx Xxxxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000; Attention: X. Xxxxxx Xxxxxxxx, with a
copy to Xxxxxxx Xxxx, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention Xxxxxxx X. Xxxxx, Esq.] (b) if to you, as
Representatives of the Underwriters, at the office of X.X. Xxxxxxx & Sons, Inc.,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxxx, with a copy to Xxxxxxxx Chance US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund, the Adviser, the Sub-Adviser, their directors,
trustees, officers, managers, members and the other controlling persons referred
to in Section 9 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" nor 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.
25
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Adviser, the Sub-Adviser and the several Underwriters.
Very truly yours,
ING CLARION REAL ESTATE INCOME FUND
By: ____________________________________
Name:
Title:
ING CLARION REAL ESTATE SECURITIES, INC.
By: ____________________________________
Name:
Title:
ING CLARION CAPITAL, LLC
By: ____________________________________
Name:
Title:
26
Confirmed as of the date first above written on behalf of themselves and the
other several Under-writers named in Schedule I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
X.X. XXXXXXX & SONS, INC.
By: _________________________________
Name: [ ]
Title: [ ]
27
SCHEDULE I
Underwriter Number of Shares
----------- ----------------
X.X. Xxxxxxx & Sons, Inc.
Total ________________
28
EXHIBIT A
FORM OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP OPINION
1. The Fund is a statutory trust duly formed, validly existing and in good
standing under the laws of the State of Delaware and is qualified to do
business as a foreign corporation in [the State Pennsylvania, which
such counsel has been advised by an officer of the Fund is the only
state in which the Fund maintains an office for the conduct of its
business].
2. The Fund has the trust power and authority to: (i) own its properties
and conduct its business as described in the Registration Statement and
the Prospectus; and (ii) execute, deliver, and perform its obligations
under the Underwriting Agreement and the Fund Agreements.
3. To such counsel's knowledge, the Fund does not have any subsidiaries.
4. The common shares of the Fund, par value $.001 per share (the "Common
Shares"), conform in all material respects as to all statements as to
legal matters relating thereto contained in the Prospectus. No person
is entitled to any preemptive or other similar rights with respect to
the Common Shares.
5. The number of authorized Common Shares is as set forth in the
Prospectus under the caption "Description of Shares -- Common Shares."
All Common Shares that to such counsel's knowledge have been issued and
are outstanding prior to the issuance of the Firm Shares: (i) have been
duly authorized, validly issued and are fully paid and non-assessable;
and (ii) have been offered and sold by the Fund in compliance with
applicable law.
6. The Shares have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and, when issued
and delivered by the Fund pursuant to the Underwriting Agreement
against payment of the consideration set forth in the Underwriting
Agreement, will be validly issued and fully paid and non-assessable.
7. The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act, any required filing
of the Prospectus pursuant to Rule 497(c) or Rule 497(h) has been made
in the manner and within the time period required by Rule 497, and to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement or of any Rule 462(b) Registration Statement
has been issued, or proceedings therefor threatened by the Commission,
under the 1933 Act.
8. The Fund is duly registered with the Commission under the 1940 Act as a
closed-end diversified management investment company.
9. Other than with respect to financial statements and related notes and
schedules and any other financial, accounting and statistical
information that is included or incorporated by reference in, or
omitted from, the following documents, as to which such counsel need
express no opinion: (i) the Registration Statement, including any Rule
462(b) Registration Statement and any Rule 430A Information, the
Prospectus and any amendment or supplement thereto through the date
hereof complied as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations thereunder; and (ii) the Fund's notification of
registration on Form N-8A complied as to form in all material respects
with the requirements of the 1940 Act and the Rules and Regulations
thereunder.
Exhibit A-1
10. Insofar as the statements in the Prospectus under the captions
"Description of Shares - Common Shares," "Tax Matters - Taxation of the
Trust" and "Tax Matters - Taxation of Shareholders" and in the
Registration Statement under Item 29 (Indemnification) constitute
summaries of legal matters, provisions of the Fund's declaration of
trust or by-laws or legal proceedings or legal conclusions referred to
therein, those statements fairly present the information called for
with respect to those legal matters, documents, proceedings or
conclusions.
11. To such counsel's knowledge, there is no action, suit, proceeding,
inquiry or investigation by or before any court or governmental agency
that is pending against the Fund or to which any of its properties are
subject or that is threatened against the Fund, which may reasonably be
expected to result in a Material Adverse Effect or to materially and
adversely affect the properties or assets of the Fund, the consummation
by the Fund of the transactions contemplated in the Underwriting
Agreement or the performance by the Fund of its obligations thereunder.
12. The terms of the Underwriting Agreement and each of the Fund Agreements
do not violate in any material respect any applicable provision of 1940
Act, the Rules and Regulations thereunder, the Advisers Act or the
Advisers Act Rules and Regulations.
13. Neither the execution and delivery by the Fund of, and the performance
by the Fund of its obligations under, the Underwriting Agreement or the
Fund Agreements, nor the issuance and sale of the Shares to the
Underwriters and the use by the Fund of the proceeds thereof as
provided by the Underwriting Agreement and as described in the
Prospectus under the caption "Use of Proceeds": (i) violate the Fund's
declaration of trust or bylaws; (ii) violate, breach or constitute a
default or event of default under the terms of any agreement or
instrument that is filed as an exhibit to the Registration Statement
and to which the Fund is a party or by which its property may be bound,
except for violations, breaches or defaults that would not have a
Material Adverse Effect; (iii) violate the laws of the United States,
the States of Delaware and New York and [The Commonwealth of
Massachusetts] that are, in such counsel's experience, applicable to
the transactions of the types covered by the Underwriting Agreement and
the Fund Agreements (the "Covered Laws"); (iv) violates the terms of
any order of any court, governmental instrumentality, securities
exchange or association or arbitrator specifically naming the Fund and
known to such counsel or (v) to such counsel's knowledge, require the
Fund to obtain any consent or approval by, or make any filing with, any
court, or any regulatory body, administrative or other governmental
body, agency or official under any statute, rule, or regulation of the
State of Deleware or of the United States, other than consents,
approvals and filings previously obtained or made and in full force and
effect.
14. The execution and delivery of, and performance of the Fund's
obligations under, the Underwriting Agreement and each of the Fund
Agreements have been duly authorized by all necessary action of the
Fund, and the Fund has duly executed and delivered the Underwriting
Agreement and each of the Fund Agreements.
15. Each of the Fund Agreements constitutes the legal, valid and binding
obligation of the Fund, enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by the
effect of bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium, and other, similar laws affecting the rights
and remedies of creditors generally and by general principles of equity
(whether applied by a court of law or equity), and except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
Exhibit A-2
Such counsel shall also state that they have been informed that the
Shares have been approved for listing on the New York Stock Exchange, subject to
official notice of issuance, and the Fund's Registration Statement on Form 8-A
under the 1934 Act is effective.
In addition, such counsel shall state that they are not opining as to
factual matters, and the character of determinations involved in the
registration process is such that such counsel are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
information included in the Registration Statement and the Prospectus or in any
amendment or supplement thereto. Such counsel may assume the correctness and
completeness of the information included therein, and such counsel need have
made no independent investigation or verification of that information. However,
such counsel shall state that they have participated in the preparation of the
Registration Statement and the Prospectus and in discussions with certain
officers and trustees of the Fund, certain officers and employees of the
Advisers and your representatives, and such counsel shall have reviewed certain
Fund records and documents relative to the Fund, the Adviser and the
Sub-Adviser. Based on that participation and review, such counsel shall advise
you that nothing has come to such counsel's attention that causes such counsel
to believe that the Registration Statement, including any Rule 462(b)
Registration Statement and any Rule 430A Information, at the time it became
effective, 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 not misleading, or that the Prospectus or any amendment or
supplement thereto, at the time that the Prospectus was issued or at the Closing
Date, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. This paragraph
does not address, and such counsel need express no opinion with respect to, the
financial statements and related notes and schedules, and other financial,
accounting, and statistical information, included in, incorporated by reference
in, or omitted from the Registration Statement, the Prospectus, or any amendment
or supplement to either of them. Such counsel need also express no opinion with
respect to any matter relating to compliance with financial covenants or
financial requirements.
Exhibit A-3
EXHIBIT B
FORM OF [ ] ADVISER OPINION
i. The Adviser is validly existing as a corporation under the laws of the
[ ] of [ ] with full corporate power and authority to own or lease all
of the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under the Underwriting Agreement and
the Adviser Agreements.
ii. The Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the
Investment Company Act from acting as investment adviser for the Fund
under the Advisory Agreement as contemplated by the Registration
Statement and the Prospectus.
iii. The Underwriting Agreement and each Adviser Agreement has been duly and
validly authorized, executed and delivered by the Adviser; each Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act and the Advisers Act; and assuming due
authorization, execution and delivery by each of the other parties
thereto, each Adviser Agreement constitutes a legal, valid and binding
obligation of the Adviser, enforceable against the Adviser in
accordance with its terms, (1) subject, as to enforcement, to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (2) except as rights
to indemnity thereunder may be limited by public policy or federal or
state securities laws (except that counsel may state that it expresses
no opinion as to the reasonableness or fairness of compensation payable
under the Advisory Agreement or the Sub-Advisory Agreement).
iv. Neither (A) the execution and delivery by the Adviser of the
Underwriting Agreement or of any Adviser Agreement nor (B) the
consummation by the Adviser of the transactions contemplated by, or the
performance of its obligations under, the Underwriting Agreement or any
Adviser Agreement conflicts or will conflict with, or results or will
result in a breach of, (i) the charter or by-laws of the Adviser, (ii)
any agreement or instrument listed on an Annex to such opinion (which
the Adviser, in an officer's certificate accompanying such opinion or
otherwise delivered to the Underwriters on the Closing Date, shall have
identified as the only material agreements or instruments to which the
Adviser is a party or by which the Adviser is bound) or (iii) any
applicable United States federal or [ ] law, rule or regulation (other
than state securities or "blue sky" laws, as to which such counsel need
express no opinion), or order of any [ ] or United States federal
court, governmental instrumentality, securities exchange or association
or arbitrator, (or any other orders of any court, governmental
instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, in any other jurisdiction, as set forth on
an Annex to such opinion (which the Adviser, in an officer's
certificate accompanying such opinion or otherwise delivered to the
Underwriters on the Closing Date, shall have identified as the only
orders that are material to the Adviser) in each case specifically
naming the Adviser and (in the case of [ ] or United States federal
orders) known to such counsel, except in the case of each of clauses
(ii) and (iii) for such conflicts or breaches which do not, either
alone or in the aggregate, have a material adverse effect on the
Adviser's ability to perform its obligations under the Underwriting
Agreement or the Adviser Agreements.
v. To such counsel's knowledge, no consent, approval, authorization or
order of any New York or United States federal court, governmental
agency or body or securities exchange or association is required for
the consummation of the transactions contemplated in, or the
performance by the
Exhibit B-1
Adviser of its obligations under, the Underwriting Agreement or any
Adviser Agreement, except (i) such as have been obtained under the
United States federal securities laws and (ii) may be required by the
New York Stock Exchange or under state securities or "blue sky" laws,
in connection with the purchase and distribution of the Shares by the
Underwriters pursuant to the Underwriting Agreement.
vi. To such counsel's knowledge, there is no legal or governmental
proceeding pending or threatened against the Adviser that is either (i)
required to be described in the Registration Statement or Prospectus
that is not described therein or (ii) which would, under Section 9 of
the Investment Company Act, make the Adviser ineligible to act as the
Fund's investment adviser.
Exhibit B-2
EXHIBIT C
FORM OF [ ] SUB-ADVISER OPINION
i. The Sub-Adviser is validly existing as a limited liability company
under the laws of the [ ] of [ ] with full power and authority to own
or lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus and
to enter into and perform its obligations under the Underwriting
Agreement and Sub-Advisory Agreement.
ii. The Sub-Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the
Investment Company Act from acting as investment adviser for the Fund
under the Sub-Advisory Agreement as contemplated by the Registration
Statement and the Prospectus.
iii. Each of the Underwriting Agreement and the Sub-Advisory Agreement has
been duly and validly authorized, executed and delivered by the
Sub-Adviser; the Sub-Advisory Agreement complies in all material
respects with all provisions of the Investment Company Act and the
Advisers Act; and assuming due authorization, execution and delivery by
each of the other parties thereto, the Sub-Advisory Agreement
constitutes a legal, valid and binding obligation of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with its terms, (1)
subject, as to enforcement, to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding
in equity or at law) and (2) except as rights to indemnity thereunder
may be limited by public policy or federal or state securities laws
(except that counsel my state that it expresses no opinion as to the
reasonableness or fairness of compensation payable under the
Sub-Advisory Agreement).
iv. Neither (A) the execution and delivery by the Sub-Adviser of the
Underwriting Agreement or the Sub-Advisory Agreement nor (B) the
consummation by the Sub-Adviser of the transactions contemplated by, or
the performance of its obligations under, the Underwriting Agreement or
the Sub-Advisory Agreement conflicts or will conflict with, or results
or will result in a breach of, (i) the organizational documents of the
Sub-Adviser, (ii) any agreement or instrument listed on an Annex to
such opinion (which the Sub-Adviser, in an officer's certificate
accompanying such opinion or otherwise delivered to the Underwriters on
the Closing Date, shall have identified as the only material agreements
or instruments to which the Adviser is a party or by which the
Sub-Adviser is bound) or (iii) any applicable United States federal or
[ ] law, rule or regulation (other than state securities or "blue sky"
laws, as to which such counsel need express no opinion), or order of
any [ ] or United States federal court, governmental instrumentality,
securities exchange or association or arbitrator, (or any other orders
of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, in any other
jurisdiction, as set forth on an Annex to such opinion (which the
Sub-Adviser, in an officer's certificate accompanying such opinion or
otherwise delivered to the Underwriters on the Closing Date, shall have
identified as the only orders that are material to the Sub-Adviser) in
each case specifically naming the Sub-Adviser and (in the case of [ ]
or United States federal orders) known to such counsel, except in the
case of each of clauses (ii) and (iii) for such conflicts or breaches
which do not, either alone or in the aggregate, have a material adverse
effect on the Sub-Adviser's ability to perform its obligations under
the Underwriting Agreement or the Sub-Advisory Agreement.
v. To such counsel's knowledge, no consent, approval, authorization or
order of any New York or United States federal court, governmental
agency or body or securities exchange or association is
Exhibit C-1
required for the consummation of the transactions contemplated in, or
the performance by the Sub-Adviser of its obligations under, the
Underwriting Agreement or the Sub-Advisory Agreement, except (i) such
as have been obtained under the United States federal securities laws
and (ii) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to the
Underwriting Agreement.
vi. To such counsel's knowledge, there is no legal or governmental
proceeding pending or threatened against the Sub-Adviser that is either
(i) required to be described in the Registration Statement or
Prospectus that is not described therein or (ii) which would, under
Section 9 of the Investment Company Act, make the Sub-Adviser
ineligible to act as the Fund's investment adviser.
Exhibit C-2
EXHIBIT D
FORM OF [ ] COMFORT LETTER
[ ], 2003
The Board of Trustees of
ING Clarion Real Estate Income Fund
000 Xxxxx Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of ING Clarion
Real Estate Income Fund Inc. (the "Fund") as of [ ], 2003 (the "financial
statement") included in Pre-effective Amendment No. 2 to the Registration
Statement on Form N-2 filed by the Fund under the Securities Act of 1933 (the "
1933 Act") (File No. 333-107158) and under the Investment Company Act of 1940
(the "1940 Act," collectively, the 1933 Act and the 1940 Act, the "Acts") (File
No. 811-21404); such statement and our report with respect to such statement are
included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent auditors with respect to the Fund within
the meaning of the Acts and the applicable rules and regulations adopted
thereunder by the Securities and Exchange Commission (the "SEC").
2. In our opinion, the financial statement audited by us and
included in the Registration Statement complies as to form in all respects with
the applicable accounting requirements of the Acts and the related rules and
regulations thereunder adopted by the SEC.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of the
Board of Trustees of the Fund as set forth in the minute books at the offices of
the Fund, officials of the Fund having advised us that the minutes of all such
meetings through [ ], 2003, were set forth therein.
4. Fund officials have advised us that no financial statements as
of any date subsequent to [ ], 2003, are available. We have made inquiries of
certain officials of the Fund who have responsibility for financial and
accounting matters regarding whether there was any change at [ ], 2003, in the
capital shares or net assets of the Fund as compared with amounts shown in the [
], 2003, statement of assets and liabilities included in the Registration
Statement, except for changes that the Registration Statement discloses have
occurred or may occur. On the basis of our inquiries and our reading of the
minutes as described in Paragraph 3, nothing came to our attention that caused
us to believe that there were any such changes.
Exhibit D-1
5. In addition to the procedures referred to in clauses 3 and 4
about, we have performed other specified procedures, not constituting and audit,
with respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which have previously been
specified by the Managing Representative and which shall be specified in this
letter, and have compared such items with, and have found such items to be in
agreement with, the accounting and financial records of the Fund.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Exhibit D-2
