EXHIBIT (h)(1)
ING CLARION GLOBAL REAL ESTATE INCOME FUND
_____ COMMON SHARES
($.001 par value)
UNDERWRITING AGREEMENT
New York, New York
February __, 2004
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, ING Clarion Global Real Estate Income Fund, a
Delaware statutory trust (the "Fund") and ING Clarion Real Estate Securities,
L.P., a limited partnership (the "Adviser"), address you as underwriters and as
the representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters _____ shares (the "Firm Securities") of its
common shares of beneficial interest, par value $.001 per share (the "Common
Shares"). The Fund also proposes to sell to the Underwriters, upon the terms and
conditions set forth herein, up to an additional _____ Common Shares (the
"Option Securities") to cover over-allotments. The Firm Securities and the
Option Securities are hereinafter collectively referred to as the "Securities."
Unless otherwise stated, the term "you" as used herein means Citigroup Global
Markets Inc. individually on its own behalf and on behalf of the other
Representatives. Certain terms used herein are defined in Section 18 hereof.
The Fund and the 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 Securities by the
Underwriters.
The Fund has entered into an Investment Management Agreement
with the Adviser dated as of _____, 200_, a Custodian Agreement with The Bank of
New York dated as of _____, 200_, and a Shareholder Transfer Agency and Service
Agreement with The Bank of New York dated as of _____, 200_, and such agreements
are herein referred to as the "Management Agreement," the "Custodian Agreement"
and the "Transfer Agency Agreement," respectively. Collectively, the Management
Agreement, the Custodian Agreement and the Transfer Agency Agreement are herein
referred to as the "Fund Agreements." In addition, the Fund has adopted a
dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant to
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which holders of Common Shares shall have their dividends automatically
reinvested in additional Common Shares of the Fund unless they elect to receive
such dividends in cash.
1. Representations and Warranties of the Fund and the Adviser.
The Fund and the Adviser, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-110333 and 811-21465) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
for registration under the Act and the 1940 Act of the offering and
sale of the Securities. The Fund may have filed one or more amendments
thereto, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
each of which has previously been furnished to you. The Fund will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final prospectus
(including the statement of additional information incorporated by
reference therein)) or (2) after the Effective Date of such
registration statement, a final prospectus (including the statement of
additional information incorporated by reference therein) in accordance
with Rules 430A and 497. In the case of clause (2), the Fund has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the 1940 Act and the Rules and Regulations to be included
in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such
final prospectus (including the statement of additional information
incorporated by reference therein), shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to
the Execution Time, will be included or made therein.
(b) Each Preliminary Prospectus and Prospectus complied when
filed with the Commission in all material respects with the provisions
of the 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 registration statement, the Preliminary Prospectus
or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Fund in
writing by or on behalf of any Underwriter through you expressly for
use therein. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus.
(c) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 497 and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Prospectus (and any
supplements
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thereto) will, and the 1940 Act Notification when originally filed with
the Commission and any amendment or supplement thereto when filed with
the Commission did or will, comply in all material respects with the
applicable requirements of the Act, the 1940 Act and the Rules and
Regulations and the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 497, will not, and on the
date of any filing pursuant to Rule 497 and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit 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; provided, however, that the Fund makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Fund by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(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 power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification. The Fund has no subsidiaries.
(e) The Fund's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Fund conforms in all
material respects to the description thereof contained in the
Prospectus; all outstanding Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable (except as
set forth in Section 3.8 of the Trust's Declaration of Trust); the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable (except as set forth in
Section 3.8 of the Trust's Declaration of Trust); the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution,
on the American Stock Exchange; the certificates for the Securities are
in valid and sufficient form; the holders of outstanding Common Shares
are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in
the Fund are outstanding.
(f) The Fund's registration statement on Form 8-A under the
Exchange Act has become effective.
(g) The Fund, subject to the Registration Statement having
been declared effective and the filing of the Prospectus under Rule
497, has taken all required action
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under the Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Securities as
contemplated by this Agreement.
(h) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit thereto,
which are not described or filed as required; and the statements in the
Prospectus under the heading "Tax Matters" and "Certain Provisions in
the Agreement and Declaration of Trust" fairly summarize the matters
therein described.
(i) The execution and delivery of and the performance by the
Fund of its obligations under this Agreement and the Fund Agreements
have been duly and validly authorized by the Fund and this Agreement
and the Fund Agreements have been duly executed and delivered by the
Fund and constitute the valid and legally binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification
that the enforceability of the Fund's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(j) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940
Act Notification has been duly filed with the Commission. The Fund has
not received any notice from the Commission pursuant to Section 8(e) of
the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement.
(k) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act and the 1940
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Prospectus.
(l) Neither the issuance and sale of the Securities, 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) conflicts or will
conflict with or constitutes or will constitute a breach of the
declaration of trust or by-laws of the Fund, (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound or (iii) violates or will violate any material
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Fund or any of its properties or will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which it is a party or by which
it may be bound or to which any of the property or assets of the Fund
is subject.
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(m) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(n) The financial statements, together with related schedules
and notes, included in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition,
results of operations and cash flows of the Fund as of the dates and
for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and the 1940 Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except
as otherwise noted therein); and the other financial and statistical
information and data included in the Registration Statement or the
Prospectus are accurately derived from such financial statements and
the books and records of the Fund.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby or (ii) could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Fund, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(p) The Fund is not (i) in violation of its declaration of
trust or by-laws, (ii) in breach or default in the performance of the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject or (iii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court
or any other governmental, regulatory, self-regulatory or
administrative agency or any official having jurisdiction over the
Fund.
(q) Since the date as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund
(other than as a result of a change in the financial markets generally)
of the Fund, whether or not arising in the ordinary course of business,
(ii) there have been no transactions entered into by the Fund which are
material to the Fund other than those in the ordinary course of its
business as described in the Prospectus, (iii) the Fund has not
incurred any material liability or material obligation, direct or
contingent, or entered into any transaction, not in the ordinary course
of business, that is material to the Fund, and (iv) there has been no
dividend or distribution of any kind declared, paid or made by the Fund
on any class of its Common Shares.
(r) [_______________], who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are
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independent public accountants with respect to the Fund within the
meaning of the Act and the Act Rules and Regulations.
(s) 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 Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or
other materials permitted by the Act, the 1940 Act or the Rules and
Regulations.
(t) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Fund or
sale by the Fund of the Securities.
(u) The Fund has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto)) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect
on the condition (financial or otherwise), earnings, business or
properties of the Fund, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(v) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by the Fund or the Adviser
for use in connection with the offering and sale of the Securities
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the Act, the Act Rules and
Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were
provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, for filing. No sales material contained or contains an
untrue statement of a material fact or omitted or omits 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.
(w) The Fund's directors and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund
has not been refused any insurance
7
coverage sought or applied for; and the Fund has no reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(x) 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; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred
which allows or, after notice or lapse of time, would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the Fund under any such permit, subject in each case to
such qualification as may be set forth in the Prospectus; and, except
as described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Fund.
(y) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization and with the investment objectives, policies
and restrictions of the Fund and the applicable requirements of the
1940 Act, the 1940 Act Rules and Regulations and the Internal Revenue
Code of 1986, as amended (the "Code"); (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate
net asset value, to maintain accountability for assets and to maintain
material compliance with the books and records requirements under the
1940 Act and the 1940 Act Rules and Regulations; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund
to facilitate the sale or resale of the Securities, and the Fund is not
aware of any such action taken or to be taken by any affiliates of the
Fund.
(aa) Neither the Fund nor, to the knowledge of the Fund, any
trustee, officer, agent, employee or affiliate of the Fund is aware of
or has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to
any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Fund,
except where such breach or
8
violations does not have a material adverse effect on the condition
(financial or otherwise), assets or results of operations of the Trust
and, to the knowledge of the Fund, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder.
(bb) This Agreement and each of the Fund Agreements complies
in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(cc) Except as disclosed in the Prospectus, 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.
(dd) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with
the requirements of Subchapter M of the Code.
(ee) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service marks or
trade names which it does not own, possess or license.
(ff) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global
Markets Holdings Inc. and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of Citigroup Global Markets
Holdings Inc.
(gg) There is and has been no failure on the part of the Fund
and any of the Fund's trustees or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated in connection therewith (the
"Xxxxxxxx-Xxxxx Act"), including Sections 302 and 906 related to
certifications.
(hh) The operations of the Fund are and have been conducted at
all times in compliance with applicable financial recordkeeping and
reporting requirements of The Bank Secrecy Act of 1970, as amended
(including amendments pursuant to the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001), the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") except where such breach or
violations does not have a material adverse effect on the condition
(financial or otherwise), assets or results of operations of the Trust
and no action, suit or proceeding by or before any court or
governmental agency, authority or
9
body or any arbitrator involving the Fund with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Fund,
threatened.
(ii) Neither the Fund nor, to the knowledge of the Fund, any
trustee, officer, agent, employee or affiliate of the Fund is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department ("OFAC"); and the Fund
will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any other
person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Fund and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Fund, as to matters covered thereby, to each Underwriter.
2. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser has been duly formed and is validly existing
in good standing as a [________ under the State of ____], with full
[corporate] power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign [corporation] and is
in good standing under the laws of each jurisdiction which requires
such qualification.
(b) The Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting for the Fund under the Fund Agreements to
which it is a party as contemplated by the Prospectus.
(c) The Adviser has full power and authority to enter into
this Agreement, and the Fund Agreements to which it is a party, the
execution and delivery of, and the performance by the Adviser of its
obligations under, this Agreement, and the Fund Agreements to which it
is a party, have been duly and validly authorized by the Adviser; and
this Agreement and the Fund Agreements to which it is a party, have
been duly executed and delivered by the Adviser and constitute the
valid and legally binding agreements of the Adviser, enforceable
against the Adviser in accordance with their terms, except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and
by general equitable principles.
(d) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus and under this Agreement and the Fund
Agreements to which it is a party.
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(e) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Prospectus complied and
comply in all material respects with the provisions of the Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property is pending or, to the best knowledge of the
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of the Adviser to fulfill its
obligations hereunder or under the Fund Agreements to which it is a
party, or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, business or
properties of the Adviser, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto); 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 to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act, the 1940 Act or
the Rules and Regulations.
(g) Since the date as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
of the Adviser, whether or not arising from the ordinary course of
business and (ii) there have been no transactions entered into by the
Adviser which are material to the Adviser other than those in the
ordinary course of its business as described in the Prospectus.
(h) 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; the Adviser has fulfilled and performed all its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Adviser under any such permit.
(i) This Agreement and the Fund Agreements to which the
Adviser is a party comply in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act and the Advisers Act Rules and Regulations.
(j) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements by
the Adviser which is a party thereto, except such as have been made or
obtained under the Act and the 1940 Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
11
purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus.
(k) Neither the execution, delivery or performance of this
Agreement or any of the Fund Agreements to which the Adviser is a
party, nor the consummation by the Fund or the Adviser of the
transactions contemplated hereby or thereby (i) conflicts or will
conflict with or constitutes or will constitute a breach of the limited
liability company agreement of the Adviser, (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which the Adviser is a party or by which it or any of its
properties may be bound or (iii) violates or will violate any material
statute, law, regulation or filing 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 material lien, charge or
encumbrance upon any property or assets of the Adviser pursuant to the
terms of any agreement or instrument to which the Adviser is a party or
by which the Adviser may be bound or to which any of the property or
assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus,
the Adviser has not taken and nor will it take, directly or indirectly,
any action designed to or which should reasonably be expected to cause
or result in or which will constitute, stabilization or manipulation of
the price of the any security of the Fund in violation of federal
securities laws and the Adviser is not aware of any such action taken
or to be taken by any affiliates of the Adviser.
(m) In the event that the Fund or the Adviser makes available
any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, the Adviser will install
and maintain pre-qualification and password-protection or similar
procedures which are reasonably designed to effectively prohibit access
to such promotional materials by persons other than qualified
broker-dealers and registered representatives thereof.
3. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Fund agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Fund, at a purchase price of $_____ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____ Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number
12
of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
4. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 3(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
February 27, 2004 or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives
and the Fund or as provided in Section 10 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date"). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Fund by wire transfer payable in same-day funds to an account specified
by the Fund. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Fund will deliver
the Option Securities (at the expense of the Fund) to the Representatives, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Fund by wire transfer payable in
same-day funds to an account specified by the Fund. If settlement for the Option
Securities occurs after the Closing Date, the Fund will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 7 hereof.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Fund has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is
13
otherwise required under Rule 497, the Fund will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to Rule
497 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Fund
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 497
or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Fund of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Fund will use its
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which, in the judgment of the Fund or in the reasonable
opinion of counsel for the Underwriters, the Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act, the 1940
Act and the Rules and Regulations, the Fund promptly will (1) notify
the Representatives of any such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 6, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Fund will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Fund which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Fund will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will
14
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the
Fund be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action that would subject it
to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise)) by the Fund or any
affiliate of the Fund or any person in privity with the Fund, directly
or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other Common Shares or any securities convertible
into, or exercisable, or exchangeable for, Common Shares; or publicly
announce an intention to effect any such transaction for a period of
180 days following the Execution Time, provided, however, that the Fund
may issue and sell Common Shares pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Fund in
effect at the Execution Time and the Fund may issue Common Shares
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(g) The Fund will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and will use its best efforts to
cause the Fund's trustees and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without
limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Fund and the Adviser will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the
Securities.
(i) The Fund agrees to pay the costs and expenses
relating to the following matters: (i) the preparation,
printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus
and the 1940 Act Notification and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, any
sales material and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iii)
the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this
15
Agreement, any blue sky memorandum, dealer agreements and all
other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities;
(v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the American Stock
Exchange; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky
laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any
filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other
expenses incurred by or on behalf of Fund representatives in
connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Fund's
accountants and the fees and expenses of counsel (including
local and special counsel) for the Fund; (x) all other costs
and expenses incident to the performance by the Fund of its
obligations hereunder; and (xi) $.005 per share for partial
reimbursement of certain Underwriter expenses; provided
however, that such partial reimbursement shall not exceed
$75,000.
(i) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(j) The Fund will comply with the requirements of Subchapter M
of the Code to qualify as a regulated investment company under the
Code.
(k) The Fund and the Adviser will use their reasonable best
efforts to perform all of the agreements required of them by this
Agreement and discharge all conditions of theirs to closing as set
forth in this Agreement.
(l) The Adviser hereby agrees and covenants to waive receipt
of a portion of its fees or other payments from the Fund to which it is
entitled in the amounts and for the time periods set forth in the
Prospectus.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund and the Adviser contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 4 hereof, to the accuracy of the statements of the Fund made
in any certificates pursuant to the provisions hereof, to the performance by the
Fund or the Adviser of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day
16
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such
date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 497, the Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
497; and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Fund shall have requested and caused Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Fund, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) 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 power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires
such qualification; and the Fund has no subsidiaries;
(ii) The Fund's authorized equity capitalization is
as set forth in the Prospectus; the capital stock of the Fund
conforms in all material respects to the description thereof
contained in the Prospectus; all outstanding Common Shares
have been duly and validly authorized and issued and are fully
paid and nonassessable (except as set forth in Section 3.8 of
the Declaration of Trust); the Securities have been duly and
validly authorized, and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be
fully paid and nonassessable; the Securities are duly listed,
and admitted and authorized for trading, subject to official
notice of issuance and evidence of satisfactory distribution,
on the American Stock Exchange; the certificates for the
Securities are in valid and sufficient form; the holders of
outstanding Common Shares are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as
set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership
interests in the Fund are outstanding;
(iii) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Fund or its property of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there are
no agreements, contracts, indentures, leases or other
instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required
by the Act, the 1940 Act or the Rules and Regulations; and the
statements included in the Prospectus under the headings "Tax
Matters" and "Certain Provisions in the Agreement and
Declaration of Trust" insofar as such statements summarize
legal matters, agreements,
17
documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents or
proceedings;
(iv) The Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 497 have been made in
the manner and within the time period required by Rule 497; to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the Act Rules and Regulations; and such counsel has no
reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(v) The execution and delivery of and the performance
by the Fund of its obligations under this Agreement and the
Fund Agreements have been duly and validly authorized by the
Fund and this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid
and legally binding agreements of the Fund, enforceable
against the Fund in accordance with their terms, except as
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 thereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles;
(vi) The Fund is duly registered with the Commission
under the 1940 Act as a closed-end, non-diversified management
investment company and all action has been taken by the Fund
as required by the Act and the 1940 Act and the Rules and
Regulations in connection with the issuance and sale of the
Securities to make the public offering and consummate the sale
of the Securities as contemplated by this Agreement; the Fund
Agreements comply in all material respects with all applicable
provisions of the Act, the 1940 Act, the Advisers Act, the
Rules and Regulations and the Advisers Act Rules and
Regulations; and the Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration
Statement;
18
(vii) No consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein or in the Fund Agreements, except such as have been
made or obtained under the Act and the 1940 Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in
this Agreement and in the Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(viii) Neither the issuance and sale of the
Securities, 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 or the adoption of the Fund's Dividend
Reinvestment Plan (i) conflicts or will conflict with or
constitutes or will constitute a breach of the declaration of
trust or by-laws of the Fund, (ii) conflicts or will conflict
with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it
or any of its properties may be bound or (iii) violates or
will violate any material statute, law, regulation or filing
or judgment, injunction, order or decree applicable to the
Fund or any of its properties or will result in the creation
or imposition of any material lien, charge or encumbrance upon
any property or assets of the Fund pursuant to the terms of
any agreement or instrument to which it is a party or by which
it may be bound or to which any of the property or assets of
the Fund is subject; and
(ix) No holders of securities of the Fund have rights
to the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Fund and public officials. References to
the Prospectus in this paragraph (b) shall also include any supplements
thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of
Xxxxx Xxxx, counsel for the Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) [The Adviser has been duly [formed] and is
validly existing in good standing under the laws of the State
of _____], with full [corporate] power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification.
19
(ii) The Adviser is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting
under the Fund Agreements to which it is a party for the Fund,
as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to
enter into this Agreement and the Fund Agreements to which the
Adviser is a party, and this Agreement, and the Fund
Agreements to which the Adviser is a party, have been duly
authorized, executed and delivered by the Adviser which is a
party thereto and this Agreement, the Fund Agreements to which
the Adviser is a party, are each a 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 and thereunder may be limited by
Federal or state securities laws or principles of public
policy and subject to the qualification that the
enforceability of the Adviser's obligations thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable
principles whether enforcement is considered in a proceeding
in equity or at law;
(iv) This Agreement, and the Fund Agreements to which
the Adviser is a party, comply in all material respects with
all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules
and Regulations;
(v) Neither the execution, delivery or performance of
this Agreement, the Fund Agreements to which the Adviser is a
party, nor the consummation by the Adviser of the transactions
contemplated hereby and thereby (A) conflicts or will conflict
with, or constitutes or will constitute a breach of or default
under, the certificate of incorporation or bylaws, or other
organizational documents, of the Adviser or (B) conflicts or
will conflict with, or constitutes or will constitute a
material breach of or material default under any material
agreement, indenture, lease or other instrument to which the
Adviser is a party, or will result in the creation or
imposition of any material lien, charge or encumbrance upon
any material property or material assets of the Adviser, nor
will any such action result in any material violation of any
law of the State of New York, the Delaware General Corporation
Law, the 1940 Act, the Advisers Act or any regulation or
judgment, injunction, order or decree applicable to the
Adviser or any of its properties;
(vi) The description of the Adviser and its business
in the Prospectus complies in all material respects with all
requirements of the Act, the 1940 Act and the Rules and
Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in
the Prospectus, there are no actions,
20
suits or other legal or governmental proceedings pending or
threatened against the Adviser or to which the Adviser or any
of its property is subject which are required to be described
in the Prospectus;
(viii) The Adviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations as are
necessary for it to carry on its business as contemplated in
the Prospectus;
(ix) No material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Adviser for the
performance of this Agreement or the Fund Agreements, by the
Adviser or for the consummation by the Adviser of the
transactions contemplated hereby or thereby; and
(x) Such counsel shall also state that it has no
reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and other financial and statistical information contained
therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Fund and public officials. References to
the Prospectus in this paragraph (c) shall also include any supplements
thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Fund and the Adviser shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Fund shall have furnished to the Representatives a
certificate of the Fund, signed by the Chairman of the Board or the
President and the principal financial or
21
accounting officer of each of the Fund and the Adviser, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) The representations and warranties of the Fund
and the Adviser in this Agreement are true and correct on and
as of the Closing Date with the same effect as if made on the
Closing Date and the Fund and the Adviser have complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Fund's or the
Adviser's knowledge, threatened; and
(iii) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect
on the condition (financial or otherwise), prospects,
earnings, business or properties of the Fund or the Adviser,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(f) The Fund shall have requested and caused Ernst & Young LLP
to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance heretofore approved
by the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(f) of this Section 7 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Fund and the
Adviser, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(h) The Securities shall have been listed and admitted and
authorized for trading on the American Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
22
(i) Fees payable pursuant to the Structuring Fee Agreement,
dated as of the date hereof, between Citigroup Global Markets Inc. and
the Adviser shall have been paid in full as described therein.
(j) Prior to the Closing Date, the Fund and the Adviser shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Fund in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall
be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing
Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Adviser to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification and Contribution. (a) The Fund and the
Adviser, jointly and severally, agree to indemnify and hold harmless each of you
and each other Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several (including reasonable costs of
investigation), to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, any Preliminary Prospectus, any sales
material (or any amendment or supplement to any of the foregoing), or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Fund will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or
23
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Fund may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Fund and the Adviser, each of its trustees, each
of its officers who signs the Registration Statement, and each person who
controls the Fund or the Adviser within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Fund and
the Adviser to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Fund by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Fund and the Adviser acknowledge that (i) the statements set forth, under the
heading "Underwriting", excluding the entire paragraph describing the
distribution assistance offered by ING Funds Distributor, LLC and (ii) the list
of Underwriters and their respective participation in the sale of the Securities
in any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
24
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Adviser and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Adviser and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Adviser and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the 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 as well as any other relevant equitable
considerations. Benefits received by the Fund and the Adviser (treated jointly
for this purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund and the Adviser on the one hand
(treated jointly for this purpose as one person) or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Fund, the 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 or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Fund or the Adviser within the meaning of either the Act or the Exchange Act,
each officer of the Fund and the Adviser who shall have signed the Registration
Statement and each director of the Fund and the Adviser shall have the same
rights to contribution as the Fund and the Adviser, subject in each case to the
applicable terms and conditions of this paragraph (d). [The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to the
25
respective number of Firm Securities set forth opposite their names in Schedule
I (or such numbers of Firm Securities increased as set forth in Section 10
hereof) and not joint.]
(e) 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.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the 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 or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (control to be determined within the meaning of the Act or
the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Adviser or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Adviser shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Fund.
In the event of a default by any Underwriter as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I
26
hereto who, with your approval and the approval of the Fund, purchases Firm
Securities which a defaulting Underwriter agreed, but failed or refused, to
purchase.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, without liability
on the part of the Underwriters to the Fund or the Adviser, by notice given to
the Fund or the Adviser prior to delivery of and payment for the Securities, if
at any time prior to such time (i) trading in the Fund's Common Shares shall
have been suspended by the Commission or the American Stock Exchange or trading
in securities generally on the NYSE or the American Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on
either of the exchanges, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Fund and the Adviser or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Fund or the
Adviser or any of the officers, trustees, employees, agents or controlling
persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; or, if sent to the Fund or the Adviser, will
be mailed, delivered or telefaxed to ING Clarion Global Real Estate Income Fund
(fax no.: (610) 995-____) and confirmed to it at 000 Xxxxxx-Xxxxxxx Xxxx, 0xx
Xxxxx, Xxxxxx, XX 00000, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
27
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of
registration of the Fund as an investment company under the 1940 Act on
Form N-8A, as the 1940 Act Notification may be amended from time to
time.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940,
as amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
28
"Prospectus" shall mean the prospectus (including the
statement of additional information incorporated by reference therein)
relating to the Securities that is first filed pursuant to Rule 497
after the Execution Time or, if no filing pursuant to Rule 497 is
required, shall mean the form of final prospectus (including the
statement of additional information incorporated by reference therein)
relating to the Securities included in the Registration Statement at
the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act
Rules and Regulations and the 1940 Act Rules and Regulations.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Fund, the Adviser and the several Underwriters.
Very truly yours,
ING Clarion Global Real Estate Income Fund
By: ______________________________________
Name:
Title:
ING Clarion Real Estate Securities, L.P.
By: ______________________________________
Name:
Title:
30
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: ___________________________
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ----------------------
Citigroup Global Markets Inc.....................................
----------
Total..........................................
==========
