___________ Shares
NUVEEN PREFERRED AND CONVERTIBLE INCOME FUND 2
Common Shares
UNDERWRITING AGREEMENT
June 25, 2003
Citigroup Global Markets Inc.
Nuveen Investments, LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, LLC
Advest, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
H&R Block Financial Advisors, Inc.
Xxxxxxx, Xxxxxx & Co.
Xxxxxxxxxx & Co. Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
McDonald Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. A FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Xxxx Xxxx & Co., Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
TD Waterhouse Investor Services, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen Preferred and Convertible Income Fund 2, a
Massachusetts business trust (the "Fund"), Nuveen Institutional Advisory Corp.,
a Delaware corporation (the "Investment Adviser"), Spectrum Asset Management,
Inc., a Connecticut corporation ("Spectrum"), and Froley, Revy Investment Co.,
Inc., a California corporation ("Froley, Revy" and, together with Spectrum, the
"Subadvisers" and the Subadvisers, together with the Investment Adviser, the
"Advisers"), address you as Underwriters and as the representatives (the
"Representatives") of each of the other persons, firms and corporations, if any,
listed in Schedule
I hereto (herein collectively called "Underwriters"). The Fund proposes to issue
and sell an aggregate of ___________ shares (the "Firm Shares") of its common
shares of beneficial interest, $0.01 par value per share (the "Common Shares"),
to the several Underwriters. The Fund also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an additional
___________ Common Shares (the "Additional Shares"). The Firm Shares and
Additional Shares are hereinafter collectively referred to as the "Shares".
The Fund and the Advisers wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund has entered into an investment management agreement with the
Investment Adviser dated May 15, 2003, a Master Custodian Agreement with State
Street Bank and Trust Company dated as of August 19, 2002 and effective as of
June 25, 2003, and a Shareholder Transfer Agency and Service Agreement with
State Street Bank and Trust Company dated October 7, 2002 and effective as of
June 25, 2003, and such agreements are herein referred to as the "Management
Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement",
respectively. The Investment Adviser has entered into an investment sub-advisory
agreement with Spectrum dated May 15, 2003, and an investment sub-advisory
agreement with Froley, Revy dated May 15, 2003, and such agreements are herein
referred to as the "Spectrum Sub-Advisory Agreement" and the "Froley, Revy
Sub-Advisory Agreement", respectively. Collectively, (i) the Management
Agreement, the Custodian Agreement and the Transfer Agency Agreement are herein
referred to as the "Fund Agreements" and (ii) the Spectrum Sub-Advisory
Agreement and the Froley, Revy Sub-Advisory Agreement are herein referred to as
the "Sub-Advisory Agreements". This Underwriting Agreement is herein referred to
as the "Agreement".
1. Registration Statement and Prospectus. The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and,
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File Nos. 333-104599 and 811-21333) under
the 1933 Act and the 1940 Act and may, pursuant to the Rules and Regulations,
prepare and file an additional registration statement relating to a portion of
the Shares pursuant to Rule 462(b) of the 1933 Act Rules and Regulations (a
"462(b) Registration Statement") (collectively, the "registration statement"),
including a prospectus (including any statement of additional information)
relating to the Shares and a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or, if
the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented, at the time it became
effective prior to the execution of this Agreement, and includes any information
deemed to be included by Rule 430A under the
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1933 Act Rules and Regulations. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed under the 1933 Act and must be declared effective before
the offering of the Shares may commence, the term "Registration Statement" as
used in this Agreement means the registration statement as amended by said
post-effective amendment. For the avoidance of doubt, if the Fund has filed a
462(b) Registration Statement, the term "Registration Statement" as used in this
Agreement shall include such 462(b) Registration Statement. The term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement or, if the prospectus (including the statement of additional
information) included in the Registration Statement omits information in
reliance on Rule 430A and such information is included in a prospectus
(including the statement of additional information) filed with the Commission
pursuant to Rule 497(h) under the 1933 Act Rules and Regulations. The term
"Prepricing Prospectus" as used in this Agreement means the prospectus
(including the statement of additional information) subject to completion in the
form included in the registration statement at the time of the initial filing of
the registration statement with the Commission and as such prospectus (including
the statement of additional information) shall have been amended from time to
time prior to the date of the Prospectus, together with any other prospectus
(including any other statement of additional information) relating to the Fund
other than the Prospectus.
The Fund has furnished the Representatives with copies of such Registration
Statement, each amendment to such Registration Statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to all
the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Advisers herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 (the "purchase price per share"), the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Advisers herein
contained and subject to all of the other terms and conditions set forth herein,
the Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of ___________ Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Advisers herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same
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proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Advisers have been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Firm Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares shall be made at the office of Citigroup Global Markets Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at
9:00 A.M., New York City time, on June 30, 2003 (the "Closing Date"). The
place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Citigroup Global Markets Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may
be the same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than two nor later than three business days after
the giving of the notice hereinafter referred to, as shall be specified in
a written notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in said notice,
of Additional Shares. The place of closing for any Additional Shares and
the Option Closing Date for such Additional Shares may be varied by
agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares
shall be registered in such names and in such denominations as you shall
request prior to 1:00 P.M., New York City time, (i) in respect of the Firm
Shares, on the second business day preceding the Closing Date and (ii) in
respect of Additional Shares, on the day of the giving of the written
notice in respect of such Additional Shares. Such certificates will be made
available to you in New York City for inspection and packaging not later
than 9:00 A.M., New York City time, on the business day next preceding the
Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, through the facilities of the
Depository Trust Company or another mutually agreeable facility, against
payment of the purchase price therefor in immediately available funds to
the order of the Fund.
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5. Agreements of the Fund and the Advisers. The Fund and the Advisers,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
Prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as practicable, but no later than
the second business day following the earlier of the date of the
determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. If the Registration Statement has become effective and the
Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will confirm such advice
in writing (i) when the Registration Statement or such post-effective
amendment has become effective or (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or the certification permitted pursuant to Rule 497(j) of the
1933 Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplated
initiation of any proceeding for any such purposes, (iii) of receipt by the
Fund, the Advisers, any affiliate of the Fund or the Advisers or any
representative or attorney of the Fund or the Advisers of any other
material communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official relating to the Fund (if such communication relating
to the Fund is received by such
5
person within three years after the date of this Agreement), the
Registration Statement, the 1940 Act Notification, the Prospectus, any
Prepricing Prospectus, any sales material (as hereinafter defined) (or any
amendment or supplement to any of the foregoing), this Agreement or any of
the Fund Agreements and (iv) within the period of time referred to in
paragraph (f) below, of any material, adverse change in the condition
(financial or other), business, prospects, properties, net assets or
results of operations of the Fund or the Advisers or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) untrue or which requires the making of any additions
to or changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing) to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
or order of any court or regulatory body. If at any time the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from the
date of this Agreement and (y) the date on which the distribution of the
Shares is completed) and will also furnish to you, without charge, such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Shares is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall
6
reasonably object within a reasonable time after being so advised or (ii)
so long as, in the opinion of counsel for the Underwriters, a Prospectus is
required to be delivered in connection with sales by any Underwriter or
dealer, file any information, documents or reports pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
7
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish
to you (i) as soon as available, a copy of each report of the Fund mailed
to shareholders or filed with the Commission and (ii) from time to time
such other information concerning the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (other than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Advisers to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Advisers,
jointly and severally, agree to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Advisers shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, neither the
Fund nor the Advisers will sell, contract to sell or otherwise dispose of
or hedge, any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares or
8
grant any options or warrants to purchase Common Shares, for a period of
180 days after the date of the Prospectus, without the prior written
consent of Citigroup Global Markets Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Advisers have taken, nor will any of them take, directly
or indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the NYSE concurrently with
the effectiveness of the Registration Statement and to comply with the
rules and regulations of such exchange.
6. Representations and Warranties of the Fund and the Advisers. The Fund
and the Advisers, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
9
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify does
not have a material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the Fund. The
Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required by the 1933 Act, the 1940
Act or the Rules and Regulations and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or
By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund,
including, without limitation, the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, or of any material decree of the Commission, the
NASD, any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund or in breach or default in any material respect
in the performance of any obligation, agreement or condition contained in
any material bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or
other order of or registration or filing which has not yet been obtained or
made with the Commission, the NASD, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except compliance
with the securities or Blue
10
Sky laws of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of the
Declaration of Trust or By-Laws of the Fund or (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 materially violates or will materially violate any material
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which
any of the property or assets of the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (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 or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (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 (and any amendment or
supplement thereto) and (iii) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit at or prior to the Closing Date the Statement of Assets and
Liabilities and the related Statement of Operations both included in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), are an independent public accounting firm as required
by the 1933 Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement and
the Prospectus at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as disclosed
therein; and the other financial and statistical information and data
included in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the 1933 Act Rules and Regulations, has taken all required action under the
1933 Act, the 1940 Act and the Rules and Regulations to make the public
offering and consummate the sale of the Shares as contemplated by this
Agreement.
11
(l) The execution and delivery of and the performance by the Fund of
its obligations under, this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent, that is material to the Fund and there has not been
any change in the capital stock or material increase in the short-term debt
or long-term debt of the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public in either printed or electronic form any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prepricing Prospectus included
in Pre-Effective Amendment No. 2 to the Registration Statement, the
Prospectus and the advertisements/sales literature filed by Nuveen
Investments with the NASD on May 21, 2003.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance
12
with the books and records requirements under the 1940 Act and the 1940 Act
Rules and Regulations; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded account for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) The 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.
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Common Shares in violation of federal
securities laws and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and
at the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the
1940 Act Rules and Regulations. The Fund has not received any notice from
the Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Advisers for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were so
filed. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the
13
registration statement or consummation of the transactions contemplated by
this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the NYSE and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
7. Representations and Warranties of the Advisers. Each of the Investment
Adviser, Spectrum and Froley, Revy, severally as to itself only and not jointly
or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation duly organized and validly existing
in good standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them) and is
duly registered and qualified to conduct business and is in good standing
in each jurisdiction or place where the nature of its properties or conduct
of its business requires such registration or qualification, except where
the failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Fund Agreements to which it is a party for the Fund
or the Sub-Advisory Agreements to which it is a party as contemplated by
the Registration Statement and the Prospectus (or any amendment or
supplement thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the Sub-Advisory
Agreements to which it is a party, the execution and delivery of, and the
performance by such Adviser of its obligations under, this Agreement, the
Fund Agreements to which it is a party and the Sub-Advisory Agreements to
which it is a party have been duly and validly authorized by such Adviser;
and this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreements to which it is a party have been duly executed and
delivered by such Adviser and constitute the valid and legally binding
agreements of such Adviser, enforceable against such Adviser in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
14
(d) Such Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Fund Agreements to which it is a
party and the Sub-Advisory Agreements to which it is a party.
(e) Such Adviser is not in violation of its Certificate of
Incorporation, By-Laws or other organizational documents or in violation of
the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated in connection therewith, in default under any
material agreement, indenture or instrument or in breach or violation of
any judgment, decree, order, rule or regulation of any court or
governmental or self-regulatory agency or body except where such violation
or breach would not have a material, adverse effect on the condition
(financial or other), business, prospects, properties, net assets or
results of operations of the such Adviser or on the ability of the such
Adviser to perform its obligations under this Agreement, the Management
Agreement or the Sub-Advisory Agreements.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of such Adviser, threatened against such Adviser or to which any
of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of such Adviser or that reasonably should have a material,
adverse effect on the ability of such Adviser to fulfill its obligations
hereunder or under the Fund Agreements to which it is a party or under the
Sub-Advisory Agreements to which it is a party.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of such Adviser, whether or not arising from the ordinary course
of business and (ii) there have been no transactions entered into by such
Adviser which are material to such Adviser other than those in the ordinary
course of its business as described in the Prospectus.
15
(i) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described in
the Prospectus; such Adviser has fulfilled and performed all its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is
a party and the Sub-Advisory Agreements to which it is a party comply
in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(k) Neither the execution, delivery or performance of this
Agreement or the Fund Agreements by such Adviser which is a party
thereto or the Sub-Advisory Agreements by such Adviser which is a party
thereto, nor the consummation by such Adviser of the transactions
contemplated hereby or thereby (A) requires any consent, approval,
authorization or other order of or registration or filing with the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in accordance
with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the Certificate of Incorporation or Articles of
Incorporation, as applicable, or By-Laws of such Adviser or (B)
conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease
or other instrument to which such Adviser is a party or by which it or
any of its properties may be bound or materially violates or will
materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to such Adviser or any
of its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
such Adviser pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of the
property or assets of such Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus (and
in any amendment or supplement thereto), such Adviser has not taken and
nor will it take, directly or indirectly, any action designed to or
which should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and such Adviser is not
aware of any such action taken or to be taken by any affiliates of such
Adviser.
(m) In the event that the Fund or such Adviser makes available
any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, such Adviser will
install and maintain pre-qualification and password-protection or
similar procedures
16
which are reasonably designed to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Advisers, jointly and severally, agree
to indemnify and hold harmless each of you and each other Underwriter
and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against any and all losses, claims, damages, liabilities and
expenses, joint or several (including reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, any Prepricing Prospectus, any
sales material (or any amendment or supplement to any of the foregoing)
or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
the information relating to such Underwriters furnished in writing to
the Fund by or on behalf of any Underwriter through you expressly for
use in connection therewith; provided, however, that the foregoing
indemnity with respect to the Registration Statement, the Prospectus or
any Prepricing Prospectuses (or any amendment or supplement to any of
the foregoing) shall not inure to the benefit of any Underwriter from
whom the person asserting any loss, claim, damage, liability or expense
purchased Shares, if it is shown that a copy of the Prospectus, as then
amended or supplemented, which would have cured any defect giving rise
to such loss, claim, damage, liability or expense was not sent or
delivered to such person by or on behalf of such Underwriter, if
required by law to be so delivered, at or prior to the confirmation of
the sale of such Shares to such person and such Prospectus, amendments
and supplements had been provided by the Fund to the Underwriters in
the requisite quantity and on a timely basis to permit proper delivery.
The foregoing indemnity agreement shall be in addition to any liability
which the Fund or the Advisers may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Fund or the Advisers, such
Underwriter or such controlling person shall promptly notify the Fund
or the Advisers and the Fund or the Advisers shall assume the defense
thereof, including the employment of counsel and the payment of all
fees and expenses. Such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless (i) the Fund or the Advisers
have agreed in writing to pay such fees and expenses, (ii) the Fund and
the Advisers have failed within a reasonable time to assume the defense
and employ counsel or (iii) the named parties to
17
any such action, suit or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and the Fund
or the Advisers and such Underwriter or such controlling person shall
have been advised by its counsel that representation of such
indemnified party and the Fund or the Advisers by the same counsel
would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between
them (in which case the Fund and the Advisers shall not have the right
to assume the defense of such action, suit or proceeding on behalf of
such Underwriter or such controlling person). It is understood,
however, that the Fund and the Advisers shall, in connection with any
one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances be liable for the reasonable fees and expenses of only
one separate firm of attorneys (in addition to any local counsel if
there is any action, suit or proceeding in more than one jurisdiction)
at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Citigroup
Global Markets Inc. and that, subject to the requirements of 1940 Act
Release No. 11330, all such fees and expenses shall be reimbursed
promptly as they are incurred. The Fund and the Advisers shall not be
liable for any settlement of any such action, suit or proceeding
effected without the written consent of the Fund or the Advisers, but
if settled with such written consent or if there be a final judgment
for the plaintiff in any such action, suit or proceeding, the Fund and
the Advisers agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, liability, damage or
expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Advisers, their trustees,
directors, any officers of the Fund who sign the Registration Statement
and any person who controls the Fund or the Advisers within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity from the Fund and the Advisers
to each Underwriter, but only with respect to information relating to
such Underwriter furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration
Statement, the Prospectus or the Prepricing Prospectus (or any
amendment or supplement to any of the foregoing). If any action, suit
or proceeding shall be brought against the Fund or the Advisers, any of
their trustees, directors, any such officer or any such controlling
person, based on the Registration Statement, the Prospectus or the
Prepricing Prospectus (or any amendment or supplement to any of the
foregoing) and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have
the rights and duties given to the Fund by paragraph (b) above (except
that if the Fund or the Advisers shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's
expense) and the Fund and the Advisers, their trustees, directors, any
such officer and any such controlling person shall have the rights
18
and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability
which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and
the Advisers on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Fund and the Advisers on the one
hand (treated jointly for this purpose as one person) and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Advisers on the one
hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Fund as set forth in the table on
the cover page of the Prospectus bear to the total payments received by
the Underwriters with respect to the Firm Shares as set forth in the
table on the cover page of the Prospectus. The relative fault of the
Fund and the Advisers on the one hand (treated jointly for this purpose
as one person) and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Fund and the Advisers on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Fund, the Advisers and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or
19
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 8 are several in proportion to the respective number of
Firm Shares set forth opposite their names in Schedule I (or such
numbers of Firm Shares increased as set forth in Section 10 hereof) and
not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability from claimants on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 8 and the representations and
warranties of the Fund and the Advisers 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 Advisers or their trustees,
directors or officers or any person controlling the Fund or the
Advisers, (ii) acceptance of any Shares and payment therefor hereunder
and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Advisers or their trustees, directors
or officers or any person controlling any Underwriter, the Fund or the
Advisers shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase any Shares hereunder are subject to the accuracy of
and compliance with the representations, warranties and agreements of and by the
Fund and the Advisers contained herein on and as of the date hereof, the date on
which the Registration Statement becomes or became effective, the date of the
Prospectus (and of any amendment or supplement thereto), the Closing Date and,
with respect to any Additional Shares, any Option Closing Date; to the accuracy
and completeness of all statements made by the Fund, the Advisers or any of
their officers in any certificate delivered to the Representatives or their
counsel pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Registration Statement or such post-effective
amendment shall have become effective not later than 5:30 p.m., New
York City time, on the date hereof or at such later date and time as
shall be consented to in writing by you and all filings, if any,
required by Rules 497 and 430A under the 1933 Act Rules and Regulations
shall have been timely made; no order suspending the
20
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge
of the Fund, the Advisers or any Underwriter, threatened by the Commission
and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to your satisfaction.
(b) You shall have received on the Closing Date an opinion of Xxxx,
Xxxx & Xxxxx LLC, special counsel for the Fund and the Investment Adviser,
dated the Closing Date and addressed to you, as Representatives of the
several Underwriters, to the effect that:
(i) The Fund is a business trust duly established, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
(ii) The authorized and outstanding capital stock of the Fund
is as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion); and
the description of the authorized capital stock of the Fund contained
in the Prospectus (or any amendment or supplement thereto through the
date of the opinion) under the caption "Description of Shares"
conforms in all material respects as to legal matters to the terms
thereof contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have been duly
authorized and validly issued and are fully paid and nonassessable,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders of the
Fund may under certain circumstances be held personally liable for its
obligations;
(iv) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and not subject to any preemptive rights that entitle or
will entitle any person to acquire any Shares upon the issuance
thereof by the Fund, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
21
(v) The form of certificate for the Shares is in due and
proper form and complies with the requirements of all applicable laws
and the NYSE;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund;
(vii) Assuming due authorization, execution and delivery by the
other parties thereto and that the performance of the Fund Agreements
by such other parties will not violate law, agreements to which such
other parties or their properties are subject or orders applicable to
such other parties, the Fund Agreements constitute the valid, legal
and binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, subject to the qualification that the
enforceability of the Fund's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles, whether enforcement is considered in a
proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects with
all applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of Trust
or By-Laws or, to the best knowledge of such counsel after reasonable
inquiry, is not in material default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness, except as may be disclosed in
the Prospectus (and any amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's
22
Dividend Reinvestment Plan violates the Declaration of Trust or
By-Laws of the Fund or any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of
its properties is bound that is an exhibit to the Registration
Statement or that is known to such counsel after reasonable inquiry
or, to the best of such counsel's knowledge after reasonable inquiry,
will result in the creation or imposition of any material lien, charge
or encumbrance upon any property or assets of the Fund, nor, to the
best of such counsel's knowledge after reasonable inquiry, will any
such action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to the Fund
or any of its properties, except that, in the published opinion of the
Commission, the indemnification provisions in this Agreement and the
Fund Agreements, insofar as they relate to indemnification for
liabilities arising under the 1933 Act, are against public policy as
expressed in the 1933 Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497 of
the 1933 Act Rules and Regulations prior to the date of such opinion
has been made in accordance with Rule 497;
(xiii) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, diversified management investment company
and all action has been taken by the Fund as required by the 1933 Act
and the 1940 Act and the Rules and Regulations in connection with the
issuance and sale of the Shares to make the public offering and
consummate the sale of the Shares as contemplated by this Agreement;
(xiv) The statements made in the Registration Statement and the
Prospectus (and any amendment or supplement thereto through the date
of the opinion) under the caption "Tax Matters" have been reviewed by
such counsel and to the extent they describe or summarize tax laws,
doctrines or practices of the United States, present a fair and
accurate description or summary thereof as of the date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement thereto through the date
of the opinion), insofar as they are descriptions of contracts,
agreements or other legal documents or refer to statements of law or
legal conclusions, are accurate and present fairly the information
required to be shown;
23
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the opinion)
comply as to form in all material respects with the requirements of
the 1933 Act, the 1940 Act and the Rules and Regulations (except that
no opinion need be expressed as to the financial statements and the
notes thereto and the schedules and other financial and statistical
data included therein);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus
(or any amendment or supplement thereto through the date of the
opinion), there are no actions, suits or other legal or governmental
proceedings pending or expressly threatened against the Fund (through
the date of the opinion) and (B) there are no material agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus (or
any amendment or supplement thereto through the date of the opinion)
or to be filed as an exhibit to the Registration Statement that are
not described or filed as required, as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the NYSE and the Fund's registration
statement on Form 8-A under the 1934 Act is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
24
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of The Commonwealth of Massachusetts,
upon the opinion of Xxxxxxx XxXxxxxxx LLP or other counsel of good standing
whom they believe to be reliable and who are satisfactory to the
Representatives; provided that (X) such reliance is expressly authorized by
the opinion so relied upon and a copy of each such opinion is delivered to
the Representatives and is, in form and substance, satisfactory to them and
their counsel and (Y) Xxxx, Xxxx & Xxxxx LLC states in their opinion that
they believe that they and the Underwriters are justified in relying
thereon.
(c) You shall have received on the Closing Date an opinion of Xxxxxxx
X. Xxxxxxxxx, Managing Director, Assistant Secretary and General Counsel
for the Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Investment Adviser is a corporation duly incorporated
and validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does not have a material, adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and authority
to enter into this Agreement, the Management Agreement and each of the
Sub-Advisory Agreements and this Agreement, the Management Agreement
and each of the Sub-Advisory Agreements have been duly authorized,
executed and delivered by the Investment Adviser and each of the
Management Agreement and the Sub-Advisory Agreements is a valid, legal
and binding agreement of the Investment Adviser, enforceable against
the Investment Adviser in accordance with its terms, subject to the
qualification that the enforceability of the Investment Adviser's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization,
25
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory
Agreements complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act Rules
and Regulations and the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Investment
Adviser of this Agreement, the Management Agreement or either of the
Sub-Advisory Agreements nor the consummation by the Investment Adviser
of the transactions contemplated hereunder or thereunder constitutes or
will constitute a breach of or a default under the Certificate of
Incorporation or By-Laws of the Investment Adviser or any material
agreement, indenture, lease or other instrument to which the Investment
Adviser is a party or by which it or any of its properties is bound
that is known to such counsel after reasonable inquiry, or will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Investment Adviser, nor
will any such action result in any violation of any existing material
law, regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to the Fund
or any of its properties;
(vi) The description of the Investment Adviser and its business
in the Prospectus (and any amendment or supplement thereto) complies in
all material respects with all requirements of the 1933 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 (and
any amendment or supplement thereto), there are no actions, suits or
other legal or governmental proceedings pending or threatened against
the Investment Adviser or to which the Investment Adviser or any of its
property is subject which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto);
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Investment Adviser to carry on its business as contemplated in the
Prospectus (and any amendment or supplement thereto); and
(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 Investment Adviser for the performance of
this Agreement, the Management Agreement or
26
the Sub-Advisory Agreements by the Investment Adviser or for the
consummation by the Investment Adviser of the transactions contemplated
hereby or thereby.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in its opinion, to determine independently and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and discussion of
the contents thereof and nothing has come to its attention that has caused it to
believe that the Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in, or omitted from, the Registration Statement or
the Prospectus (or any amendment or supplement thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the Delaware
General Corporation Law statute and the laws of the United States and may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by the Investment Adviser as to laws of any jurisdiction other than the
United States, the State of Illinois and the Delaware General Corporation Law
statute, provided that (X) each such local counsel is acceptable to the
Representatives, (Y) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Representatives
and is, in form and substance, satisfactory to them and their counsel and (Z)
counsel shall state in his view that he believes that he and the Underwriters
are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of Wolf,
Block, Xxxxxx and Xxxxx-Xxxxx LLP, special counsel for Spectrum, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) Spectrum is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Connecticut
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a
27
material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of Spectrum;
(ii) Spectrum is duly registered with the Commission under the
Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the rules and regulations promulgated by
the Commission under such acts from acting for the Fund under the
Spectrum Sub-Advisory Agreement as contemplated by the Prospectus (and
any amendment or supplement thereto);
(iii) Spectrum has corporate power and authority to enter into
this Agreement and the Spectrum Sub-Advisory Agreement and this
Agreement and the Spectrum Sub-Advisory Agreement have been duly
authorized, executed and delivered by Spectrum and the Spectrum
Sub-Advisory Agreement is a valid, legal and binding agreement of
Spectrum, enforceable against Spectrum in accordance with its terms,
subject to the qualification that the enforceability of Spectrum's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(iv) The Spectrum Sub-Advisory Agreement complies in all
material respects with all applicable provisions of the Advisers Act,
the 1940 Act and the Advisers Act Rules and Regulations and the 1940
Act Rules and Regulations;
(v) Neither the execution and delivery by Spectrum of this
Agreement or the Spectrum Sub-Advisory Agreement nor the consummation
by Spectrum of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Amended and Restated Certificate of Incorporation or By-Laws of
Spectrum or any material agreement, indenture, lease or other
instrument to which Spectrum is a party or by which it or any of its
properties is bound that is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of Spectrum,
nor will any such action result in any violation of any existing
material law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to Spectrum or any of its properties;
(vi) The description of Spectrum and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the 1933 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 (and
any amendment or supplement thereto), there are no actions, suits or
other legal or governmental proceedings pending or threatened against
Spectrum or to which Spectrum or any
28
of its property is subject that are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto);
(viii) Spectrum owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for Spectrum to
carry on its business as contemplated in the Prospectus (and any
amendment or supplement thereto); and
(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 Spectrum for the performance of this Agreement
or the Spectrum Sub-Advisory Agreement by Spectrum or for the
consummation by Spectrum of the transactions contemplated hereby or
thereby.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in its opinion, to determine independently and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and discussion of
the contents thereof and nothing has come to its attention that has caused it to
believe that the Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in, or omitted from, the Registration Statement or
the Prospectus (or any amendment or supplement thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of New York, and the laws of
the United States and may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by Spectrum as to laws of any
jurisdiction other than the United States and the State of New York, provided
that (X) each such local counsel is acceptable to the Representatives, (Y) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is, in form and
substance, satisfactory to them and their counsel and (Z) counsel shall state in
their view that they believe that they and the Underwriters are justified in
relying thereon. In addition, in rendering the opinions dependent upon the laws
of the State of Connecticut contained in Sections 9(d)(i) and (iii) above, such
counsel may state that in their
29
investigations of such law nothing has come to the attention of such counsel
that has caused them to believe that such opinions would not be true.
(e) You shall have received on the Closing Date an opinion of Xxxx
Xxxx Xxxxx, special counsel for Froley, Revy, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) Froley, Revy is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
California with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to
register or to qualify does not have a material, adverse effect on the
condition (financial or other), business, properties, net assets or
results of operations of Froley, Revy;
(ii) Froley, Revy is duly registered with the Commission under
the Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the rules and regulations promulgated by
the Commission under such acts from acting for the Fund under the
Froley, Revy Sub-Advisory Agreement as contemplated by the Prospectus
(and any amendment or supplement thereto);
(iii) Froley, Revy has corporate power and authority to enter
into this Agreement and the Froley, Revy Sub-Advisory Agreement and
this Agreement and the Froley, Revy Sub-Advisory Agreement have been
duly authorized, executed and delivered by Froley, Revy and the Froley,
Revy Sub-Advisory Agreement is a valid, legal and binding agreement of
Froley, Revy, enforceable against Froley, Revy in accordance with its
terms, subject to the qualification that the enforceability of Froley,
Revy's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(iv) The Froley, Revy Sub-Advisory Agreement complies in all
material respects with all applicable provisions of the Advisers Act,
the 1940 Act and the Advisers Act Rules and Regulations and the 1940
Act Rules and Regulations;
(v) Neither the execution and delivery by Froley, Revy of this
Agreement or the Froley, Revy Sub-Advisory Agreement nor the
consummation by Froley, Revy of the transactions contemplated hereunder
or thereunder constitutes or will constitute a breach of or a default
under the Articles of Incorporation or By-Laws of Froley, Revy or any
material agreement, indenture, lease or other instrument to which
Froley, Revy is a party or by which it or any of its properties
30
its properties is bound that is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of Froley,
Revy, nor will any such action result in any violation of any existing
material law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to Froley, Revy or any of its properties;
(vi) The description of Froley, Revy and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the 1933 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 (and
any amendment or supplement thereto), there are no actions, suits or
other legal or governmental proceedings pending or threatened against
Froley, Revy or to which Froley, Revy or any of its property is subject
that are required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto);
(viii) Froley, Revy owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for Froley, Revy to
carry on its business as contemplated in the Prospectus (and any
amendment or supplement thereto); and
(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 Froley, Revy for the performance of this
Agreement or the Froley, Revy Sub-Advisory Agreement by Froley, Revy or
for the consummation by Froley, Revy of the transactions contemplated
hereby or thereby.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in her opinion, to determine independently and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and discussion of
the contents thereof and nothing has come to its attention that has caused it to
believe that the Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to: (a) the
financial statements and the notes thereto and the schedules and other financial
and
31
statistical data included in, or omitted from, the Registration Statement or the
Prospectus (or any amendment or supplement thereto); (b) the statements
concerning the Investment Adviser or Spectrum included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (c) the description of, and risks associated with, the Fund's
investments to be managed solely by the Investment Adviser or Spectrum included
in the Registration Statement or the Prospectus; (d) the description of, and
risks associated with, FundPreferred Shares included in the Registration
Statement or the Prospectus; (e) the description of the Fund's Dividend
Reinvestment Plan included in the Registration Statement or the Prospectus; (f)
the description of the Fund's Distributions included in the Registration
Statement or the Prospectus; (g) the description of the Fund's Declaration of
Trust included in the Registration Statement or the Prospectus; (h) the
description of Shares included in the Registration Statement or the Prospectus;
(i) the statements made and opinion given about tax matters included in the
Registration Statement or the Prospectus; and (j) the description of Fund
expenses included in the Registration Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of
California, and the laws of the United States.
(f) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to such
matters as the Underwriters may require and the Fund, the Advisers and
their respective counsels shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters.
(g) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Ernst & Young LLP, independent certified
public accountants, substantially in the forms heretofore approved by
you.
(h) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or
any amendment or supplement thereto) or any Prepricing Prospectus or
any sales material shall have been issued and no proceedings for such
purpose or for the purpose of commencing an enforcement action against
the Fund, the Advisers or, with respect to the transactions
contemplated by the Prospectus (or any amendment or supplement thereto)
and this Agreement, any Underwriter, may be pending before or, to the
knowledge of the Fund, the Advisers or any Underwriter or in the
reasonable view of counsel to the Underwriters, shall be threatened or
contemplated by the Commission at or prior to the Closing Date and that
any request for additional information on the part of the Commission
(to be included in the Registration Statement, the Prospectus or
otherwise) be complied with to the satisfaction of the Representatives,
(ii) there shall not have been any change in the capital stock of the
Fund nor any material increase in debt of the Fund from that set forth
in the Prospectus (and any amendment or supplement thereto) and the
Fund shall not have sustained any material liabilities or obligations,
direct or contingent, other than those reflected in the Prospectus (and
any amendment or supplement thereto); (iii) since the
32
the date of the Prospectus there shall not have been any material,
adverse change in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund
or the Advisers; (iv) the Fund and the Advisers must not have sustained
any material loss or interference with its business from any court or
from legislative or other governmental action, order or decree or from
any other occurrence not described in the Registration Statement and
the Prospectus (and any amendment or supplement thereto); and (v) all
of the representations and warranties of the Fund and the Advisers
contained in this Agreement shall be true and correct on and as of the
date hereof and as of the Closing Date as if made on and as of the
Closing Date.
(i) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other),
business, prospects, properties, net assets or results of operations of
the Fund or the Advisers not contemplated by the Prospectus (and any
amendment or supplement thereto), which in your opinion, as
Representatives of the several Underwriters, would materially,
adversely affect the market for the Shares or (ii) any event or
development relating to or involving the Fund, the Advisers or any
officer or trustee or director of the Fund or the Advisers which makes
any statement of a material fact made in the Prospectus (or any
amendment or supplement thereto) untrue or which, in the opinion of the
Fund and its counsel or the Underwriters and their counsel, requires
the making of any addition to or change in the Prospectus (or any
amendment or supplement thereto) in order to state a material fact
required by the 1933 Act, the 1940 Act, the Rules and Regulations or
any other law to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, if amending
or supplementing the Prospectus (or any amendment or supplement
thereto) to reflect such event or development would, in your opinion,
as Representatives of the several Underwriters, materially, adversely
affect the market for the Shares.
(j) That neither the Fund nor the Advisers shall have failed at
or prior to the Closing Date to have performed or complied with any of
the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(k) That you shall have received on the Closing Date a
certificate, dated such date, of the president, any managing director
or any vice president and of the controller, treasurer or assistant
treasurer of each of the Fund, the Investment Adviser and each of the
Subadvisers certifying that (i) the signers have carefully examined the
Registration Statement, the Prospectus (and any amendments or
supplements thereto) and this Agreement, (ii) the representations and
warranties of the Fund (with respect to the certificates from such Fund
officers) and the representations of the Advisers (with respect to the
certificates from such officers of the Advisers) in this Agreement are
true and correct on and as of the date of the certificate as if made on
such date, (iii) since the date of the Prospectus (and any amendment or
supplement thereto) there has not been any material, adverse change in
the condition (financial or other), business, prospects (other than as
a result of a change in the financial markets generally), properties,
net assets or results of operations of the Fund (with respect to the
certificates from such Fund officers)
33
or the Advisers (with respect to the certificates from such officers of
the Advisers), (iv) to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Advisers (with respect to
the certificates from such officers of the Advisers) has been issued
and no proceedings for any such purpose are pending before or
threatened by the Commission or any court or other regulatory body, the
NASD, any state securities commission, any national securities
exchange, any arbitrator or any other governmental, regulatory,
self-regulatory or administrative agency or any official, (v) each of
the Fund (with respect to certificates from such Fund officers) and the
Advisers (with respect to certificates from such officers of the
Advisers) has performed and complied with all agreements that this
Agreement requires it to perform by such Closing Date, (vi) neither the
Fund (with respect to the certificate from such officers of the Fund)
nor the Advisers (with respect to the certificate from such officers of
the Advisers) has sustained any material loss or interference with its
business from any court or from legislative or other governmental
action, order or decree or from any other occurrence not described in
the Registration Statement and the Prospectus and any amendment or
supplement thereto and (vii) with respect to the certificate from such
officers of the Fund, there has not been any change in the capital
stock of the Fund nor any material increase in the debt of the Fund
from that set forth in the Prospectus (and any amendment or supplement
thereto) and the Fund has not sustained any material liabilities or
obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(l) That the Fund and the Advisers shall have furnished to you
such further certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the
Fund and the Advisers).
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel acting in
good faith.
Any certificate or document signed by any officer of the Fund or
the Advisers and delivered to you, as Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a
representation and warranty by the Fund or the Advisers to each
Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to (i) the accuracy of and
compliance with the representations, warranties and agreements of and
by the Fund and the Advisers contained herein on and as of the Option
Closing Date, as though made on any Option Closing Date, the date on
which the Registration Statement becomes or became effective and the
date of the Prospectus (and any amendment or supplement thereto) (ii)
satisfaction on and as of any Option Closing Date of the conditions set
forth in this Section 9 except that, if any Option Closing Date is
other than the Closing Date, the certificates, opinions and letters
referred to in paragraphs (b), (c), (d), (e), (f), (g), (k), (l) and
this paragraph shall be dated the
34
Option Closing Date in question and the opinions and letters called for
by paragraphs (b), (c), (d), (e) and (f) shall be revised to reflect
the sale of Additional Shares, (iii) the accuracy and completeness of
all statements made by the Fund, the Advisers or any of their officers
in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and (iv) the absence of circumstances on or
prior to the Option Closing Date which would permit termination of this
Agreement pursuant to Section 11 hereof if they existed on or prior to
the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Master Agreement Among Underwriters, to purchase Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase.
If any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares
and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Fund for the purchase of such Firm
Shares by one or more non-defaulting Underwriters or other party or parties
approved by you and the Fund are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Firm Shares which a
defaulting Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, facsimile or
telephone but shall be subsequently confirmed by letter.
35
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriters to the Fund or the Advisers, by notice given to the Fund or the
Advisers prior to delivery of and payment for the Firm Shares and any Additional
Shares, as the case may be, 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 NYSE or
trading in securities generally on the NYSE shall have been suspended or limited
or minimum prices for trading in securities generally shall have been
established on the NYSE, (ii) a commercial banking moratorium shall have been
declared by either 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 in the United States is such as to make it,
in your sole judgment, impracticable or inadvisable to proceed with the offering
or delivery of the Shares as contemplated by the Prospectus (exclusive of any
supplement thereto). Notice of such termination may be given to the Fund or the
Advisers by telegram, facsimile or telephone and shall be subsequently confirmed
by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (i) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements 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, the Prospectus, each Prepricing
Prospectus, any sales material and all amendments or supplements to any of them
as may be reasonably requested for use in connection with the offering and sale
of the Shares, (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes and transfer
agent and registrar fees payable in connection with the original issuance and
sale of such Shares, (iv) the registrations or qualifications of the Shares for
offer and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification), (v) the fees and
expenses of the Fund's independent accountants, counsel for the Fund and of the
transfer agent, (vi) the expenses of delivery to the Underwriters and dealers
(including postage, air freight and the cost of counting and packaging) of
copies of the Prospectus, the Prepricing Prospectus, any sales material and all
amendments or supplements to the Prospectus as may be requested for use in
connection with the offering and sale of the Shares, (vii) the printing (or
reproduction) and delivery of this Agreement, any dealer agreements, the
preliminary and supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and delivered in
connection with the offering of the Shares, (viii) the filing fees and the fees
and expenses of counsel for the Underwriters in connection with any filings
required to be made with the NASD and incurred with respect to the review of the
offering of the Shares by the NASD, (ix) the registration of the Shares under
the 1934 Act and the listing of the Shares on the NYSE and (x) an amount equal
to (A) $20,000 plus (B) $0.0025 per Share for each Share in
36
excess of 2,000,000 sold pursuant to this Agreement, payable no later than 45
days from the date of this Agreement to the Underwriters in partial
reimbursement of their expenses (but not including reimbursement for the cost of
one tombstone advertisement in a newspaper that is one quarter of a newspaper
page or less in size) in connection with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Advisers will pay
the costs and expenses of the Fund set forth above in this Section 12 (i)
through (ix), and reimbursements of Underwriter expenses in connection with the
offering shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the eleventh paragraph, the first sentence of the thirteenth paragraph and
the eighteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Adviser, c/o
Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Berkshire, (b) if to Spectrum, at the offices of Spectrum Asset
Management, Inc. at 0 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxx X. Xxxx, (c) if to Froley, Revy, at the offices of Froley, Revy Investment
Co., Inc. at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxx X'Xxxxxxx or (d) if to you, as Representatives of the
Underwriters, at the office of Citigroup Global Markets Inc. at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund, the Advisers, their trustees, directors and
officers and the other controlling persons referred to in Section 8 hereof and
their respective successors and assigns to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" or the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of the Fund under this
Agreement are not binding upon such officer, any of the trustees or the
shareholders individually but are binding only upon the assets and property of
the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
37
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
38
Please confirm that the foregoing correctly sets forth the agreement
among the Fund and the Advisers and the several Underwriters.
Very truly yours,
NUVEEN PREFERRED AND CONVERTIBLE INCOME FUND 2
By: ___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NUVEEN INSTITUTIONAL ADVISORY CORP.
By: _____________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
SPECTRUM ASSET MANAGEMENT, INC.
By: ___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Director
FROLEY, REVY INVESTMENT CO., INC.
By: ___________________________
Name: Xxxxxx X Xxxxxx III
Title: Chairman
39
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: CITIGROUP GLOBAL MARKETS INC.
NUVEEN INVESTMENTS, LLC
X.X. XXXXXXX & Sons, Inc.
PRUDENTIAL SECURITIES INCORPORATED
WACHOVIA SECURITIES, LLC
ADVEST, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
H&R BLOCK FINANCIAL ADVISORS, INC.
XXXXXXX, XXXXXX & CO.
XXXXXXXXXX & Co. Inc.
XXXXXX, XXXXX XXXXX, INCORPORATED
XXXXXX XXXXXXXXXX XXXXX LLC
XXXX XXXXX XXXX XXXXXX, INCORPORATED
MCDONALD INVESTMENTS INC., A KEYCORP COMPANY
QUICK & XXXXXX, INC. A FLEETBOSTON FINANCIAL COMPANY
RBC XXXX XXXXXXXX INC.
XXXX XXXX & CO., INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
TD WATERHOUSE INVESTOR SERVICES, INC.
WEDBUSH XXXXXX SECURITIES INC.
XXXXX FARGO SECURITIES, LLC
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: CITIGROUP GLOBAL MARKETS INC.
By: __________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
40
SCHEDULE I
Number of
Name of Underwriter Common Shares
------------------- -------------
Citigroup Global Markets Inc..............................
Nuveen Investments, LLC...................................
X.X. Xxxxxxx & Sons, Inc..................................
Prudential Securities Incorporated........................
Wachovia Securities, LLC..................................
Advest, Inc...............................................
Xxxxxx X. Xxxxx & Co. Incorporated........................
H&R Block Financial Advisors, Inc.........................
Xxxxxxx, Xxxxxx & Co......................................
Xxxxxxxxxx & Co. Inc......................................
Xxxxxx, Xxxxx Xxxxx, Incorporated.........................
Xxxxxx Xxxxxxxxxx Xxxxx LLC...............................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated......................
McDonald Investments Inc., a KeyCorp Company..............
Quick & Xxxxxx, Inc. A FleetBoston Financial Company......
RBC Xxxx Xxxxxxxx Inc.....................................
Xxxx Xxxx & Co., Inc......................................
Xxxxxx, Xxxxxxxx & Company, Incorporated..................
TD Waterhouse Investor Services, Inc......................
Wedbush Xxxxxx Securities Inc.............................
Xxxxx Fargo Securities, LLC...............................
Total.....................................................
