[ ] Shares
Nuveen Municipal High Income Opportunity Fund
Common Shares
UNDERWRITING AGREEMENT
----------------------
November[ ], 2003
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Nuveen Investments, LLC
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
Quick & Xxxxxx, Inc., A FleetBoston Financial Company
RBC Xxxx Xxxxxxxx, Inc.
TD Waterhouse Investor Services, Inc.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
The undersigned, Nuveen Municipal High Income Opportunity Fund, a
Massachusetts business trust, (the "Fund") and Nuveen Advisory Corp., a Delaware
corporation (the "Adviser"), address you as Underwriters and as the
Representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of [ ]
shares of its common shares of beneficial interest, $0.01 par value per share
(the "Firm Shares"), to the several Underwriters. The Fund also proposes to sell
upon the terms and conditions contained in Section 2 hereof, up to [ ]
additional common shares (the "Additional Shares" which together with
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the Firm Shares are hereinafter collectively referred to as the "Shares").
The Fund and the Adviser wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund has entered into an investment management agreement with the
Adviser dated November [ ], 2003 (the "Investment Management Agreement"), a
Custodian Agreement with State Street Bank and Trust Company ("State Street")
dated August 19, 2002, effective as of November [ ], 2003 (the "Custodian
Agreement"), a Transfer Agency Agreement with State Street dated as of October
7, 2002, effective as of November [ ], 2003 (the "Transfer Agency Agreement"),
and an Expense Reimbursement Agreement with the Adviser dated November [ ],
2003 (the "Expense Reimbursement Agreement. In addition, the Fund has adopted a
dividend reinvestment plan (the "Dividend Reinvestment Plan"), pursuant to which
holders of Shares shall have their dividends automatically reinvested in
additional common shares of the Fund unless they elect to receive such dividends
in cash. Collectively, the Investment Management Agreement, Custodian Agreement,
Transfer Agency Agreement, the Expense Reimbursement Agreement and the Dividend
Reinvestment Plan are herein referred to as the "Fund Agreements." This
Underwriting Agreement is herein referred to as the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), the Investment Company Act of 1940, as amended (the "1940 Act"),
and the rules and regulations of the Commission under the 1933 Act (the "1933
Act Rules and Regulations") and the 1940 Act (the "1940 Act Rules and
Regulations" and together with the 1933 Act Rules and Regulations, the "Rules
and Regulations") a registration statement on Form N-2 (File No. 333-109801
under the 1933 Act) (the "registration statement"), including a prospectus and
statement of additional information relating to the
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Shares, and a notification of registration of the Fund as an investment company
under the 1940 Act on Form N-8A (File No. 811-21449 under the 1940 Act, the
"1940 Act Notification"), and may pursuant to the Rules and Regulations prepare
and file an additional registration statement relating to a portion of the
Shares pursuant to Rule 462(b) of the 1933 Act Rules and Regulations (a "Rule
462 registration statement"). The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits), as amended at the time it becomes effective under the 1933 Act
or, if the registration statement became effective under the 1933 Act prior to
the execution of this Agreement, as amended or supplemented thereto immediately
prior to the execution of this Agreement and including any information deemed to
be included by Rule 430A under the 1933 Act Rules and Regulations. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed under the 1933 Act and
must be declared effective before the offering of Shares may commence, the term
"Registration Statement" as used in this Agreement means the Registration
Statement as amended by said post-effective amendment. If the Fund has filed a
Rule 462 registration statement, or if such a filing is contemplated at the time
this Agreement is executed, then the reference herein to the term "Registration
Statement" shall include such Rule 462 registration statement. The term
"Prospectus" as used in this Agreement means the prospectus and statement of
additional information in the forms included in the Registration Statement or,
if the prospectus and statement of additional information included in the
Registration Statement omit information in reliance on Rule 430A under the 1933
Act Rules and Regulations and such information is included in a prospectus and
statement of additional information filed with the Commission pursuant to Rule
497(h) under the 1933 Act Rules and Regulations, the term "Prospectus" as used
in this Agreement means the prospectus and statement of additional information
in the forms included in the Registration Statement as supplemented by the
addition of the information contained in the prospectus (including the statement
of additional information) filed with the Commission pursuant to Rule 497(h).
The term "Prepricing Prospectus" as used in
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this Agreement means the prospectus and statement of additional information
subject to completion in the form included in the registration statement at the
time of the initial filing of the registration statement with the Commission and
as such prospectus and statement of additional information shall have been
amended from time to time prior to the date of the Prospectus, together with any
other prospectus (including any other statement of additional information)
relating to the Fund other than the Prospectus. The terms "Registration
Statement," "Prospectus" and "Prepricing Prospectus" shall also include any
financial statements and other information included or incorporated by reference
therein.
The Fund has furnished the Representatives with copies of such Registration
Statement, each amendment to such Registration Statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to
all the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund, and the Adviser herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price of
$14.325 per Share (the "Price per Share"), the number of Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Adviser herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the Price per
Share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 A.M., New York City
time, on the 45/th/ day after the date of the Prospectus (or if such 45/th/ day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when
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the American Stock Exchange (the "AMEX") is open for trading), Additional
Shares. Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Shares. Upon any
exercise of the over-allotment option, upon the basis of the representations,
warranties and agreements of the Fund and the Adviser, herein contained and
subject to all of the other terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Fund the
number of Additional Shares (subject to such adjustments as you may determine to
avoid fractional shares) which bears the same 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 Adviser have been advised
by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares and compensation of the Underwriters with respect thereto shall
be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois),
000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx at 8:00 a.m. central time on
November [ ], 2003 (the "Closing Date"). The place of closing for the Firm
Shares and the Closing Date may be varied by agreement between the
Representatives and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and compensation of
the Underwriters with respect thereto shall be made at the aforementioned
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office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) 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) The Shares shall be registered in such names and in such
denominations as the Underwriters shall request prior to 1:00 P.M., New
York City time, (i) with respect to the Firm Shares, on the second business
day preceding the Closing Date (ii) with respect to the Additional Shares,
on the day of the giving of the written notice in respect of such
Additional Shares. The Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Fund and the Adviser. The Fund and the Adviser,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Shares may commence, the Fund will use its 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
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the 1933 Act Rules and Regulations, the Fund will file a prospectus
including such information pursuant to Rule 497(h) of the 1933 Act Rules
and Regulations, as promptly as practicable, but no later than the second
business day following the earlier of the date of the determination of the
offering price of the Shares or the date the Prospectus is first used after
the effective date of the Registration Statement. If the Registration
Statement has become effective and the Prospectus contained therein does
not so omit such information, the Fund will file a Prospectus or
certification pursuant to Rule 497(c) or (j), as the case may be, of the
1933 Act Rules and Regulations as promptly as practicable, but no later
than the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of the
public offering of the Shares after the effective date of the Registration
Statement. The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement or such
post-effective amendment has become effective, (ii) when the Prospectus has
been timely filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act
Rules and Regulations or (iii) when the certification permitted pursuant to
Rule 497(j) of the 1933 Act Rules and Regulations has been timely filed,
whichever is applicable.
(b) The Fund, and in the case of (iii)(B) below, the Adviser, will
advise you promptly and, if requested by you, will confirm such advice in
writing: (i) of any request made by the Commission for an amendment of or a
supplement to the Registration Statement, the Prospectus or any Prepricing
Prospectus (or any amendment or supplement to any of the foregoing) or for
additional information, (ii) of the issuance by the Commission, 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
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Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined), of any notice pursuant to Section 8(e) of the 1940 Act, of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by (A) the Fund, any
affiliate of the Fund or any representatives or attorney of the Fund of any
other material communication from the Commission, or (B) the Fund, the
Adviser, any affiliate of the Fund or the Adviser or any representatives or
attorney of the Fund or the Adviser 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, in the case of either clause (A) or (B), to the Fund (if
such communication relating to the Fund is received by such person within
three years after the date of this Agreement), the Registration Statement,
the 1940 Act Notification, the Prospectus, any Prepricing Prospectus, any
sales material(as hereinafter defined) (or any amendment or supplement to
any of the foregoing) or this Agreement 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
any event which should reasonably be expected to have a material adverse
effect on the ability of the Adviser to perform its obligations under this
Agreement or the Investment Management Agreement, as the case may be,
(other than as a result of changes in market conditions generally) 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 (or any amendment or supplement to any of
the foregoing) untrue or which requires the making of any additions to or
changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales material (or any
8
amendment or supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus or any sales material, in
light of the circumstances under which they were made) not misleading or of
the necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (or any
amendment or supplement to any of the foregoing) to comply with the 1933
Act, the 1940 Act, the Rules and Regulations or any other law or order of
any court or regulatory body. If at any time the Commission shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus or any sales material
(or any amendment or supplement to any of the foregoing) or suspending the
qualification of the Shares for offering or sale in any jurisdiction, the
Fund and the Adviser will use their reasonable best efforts to obtain the
withdrawal of such order at the earliest possible time. If at any time the
NASD, any national securities exchange, any state securities commission,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus or any sales material
(or any amendment or supplement to any of the foregoing) or suspending the
qualification of the Shares for offering or sale in any jurisdiction, the
Fund and the Adviser will use their respective 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
9
the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of 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 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 the Registration Statement or make any amendment or supplement
to the Prospectus, any Prepricing Prospectus or any sales material (or any
amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the 1933 Act, the 1940 Act or
the Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Fund.
(f) As soon after the execution and delivery of
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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 Registration Statement or
the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading or if it is necessary to supplement or amend the Registration
Statement or the Prospectus to comply with the 1933 Act, the 1940 Act, the
Rules and Regulations or any other law, rule or regulation, the Fund will
forthwith notify you of such event, prepare and, subject to the provisions
of paragraph (d) above, promptly file with the Commission an appropriate
amendment or supplement thereto and will expeditiously furnish to the
Underwriters and dealers, without charge, such number of copies thereof as
they may reasonably request. In the event that the Registration Statement
or 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.
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(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
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 subjects 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 subject.
(h) The Adviser will make generally available to the Underwriters its
staff, for assistance with roadshow presentations as the Underwriters may
reasonably request.
(i) As soon as practicable, but in no event later than the last day
of the 18th full calendar month following the calendar quarter in which the
effective date of the Registration Statement falls, the Fund will make
generally available to its security holders an earnings statement, which
need not be audited, which earnings statement shall satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and
Regulations.
(j) The Fund will comply with the undertaking set forth in paragraph
6 of Item 33 of Part C of the Registration Statement.
(k) During the period of three years hereafter, the Fund will furnish
or will have furnished to you (i) as soon as available, a copy of each
report of the Fund mailed to shareholders or filed with the Commission or
furnished to the AMEX and (ii) from time to time such other information
concerning the Fund as you may reasonably request.
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(l) If this Agreement shall terminate or be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of (i) any failure or refusal on the
part of the Fund or the Adviser to comply with any term or fulfill any of
the conditions of this Agreement required to be complied with or fulfilled
by them or (ii) the non-occurrence of any other condition (in either case,
other than by reason of default by the Underwriters in the performance of
their obligations under this Agreement), the Fund and the Adviser, jointly
and severally, agree to reimburse the Representatives for all out-of-pocket
expenses not to exceed the amounts set forth in Section 12 of this
Agreement (including reasonable fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(m) The Fund will direct the investment of the net proceeds of the
offering of the Shares (i) in accordance with the description set forth in
the Prospectus and (ii) in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(n) 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.
(o) The Fund will use its reasonable best efforts to have the shares
listed, subject to notice of issuance, on the AMEX concurrently with the
effectiveness of the Registration Statement and to comply with the rules or
regulations of such exchange.
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(p) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund, none of the Fund, the Adviser, or their
respective officers, directors or trustees will sell, contract to sell or
otherwise dispose of, any common stock or any securities convertible into
or exercisable or exchangeable for common stock or grant any options or
warrants to purchase common stock, for a period of 180 days after the date
of the Prospectus, without the prior written consent of X.X. Xxxxxxx &
Sons, Inc.
(q) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Adviser will take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Shares.
(r) The Fund will direct the investment of the proceeds of the
offering of the Shares so as to comply with the requirements of Subchapter
M of the Internal Revenue Code of 1986, as amended (the "Code"), to qualify
as a regulated investment company under the Code.
6. Representations and Warranties of the Fund and the Adviser. The Fund
and the Adviser, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations and
the Commission has not issued any order preventing or suspending the use of
the Prepricing Prospectus.
(b) The registration statement, in the form in which it became or
becomes effective and also in such
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form as it may be when any post-effective amendment thereto shall become
effective, the Prospectus and any amendment or supplement thereto when
filed with the Commission under Rule 497 of the 1933 Act Rules and
Regulations and the 1940 Act Notification when originally filed with the
Commission and any amendment or supplement thereto when filed with the
Commission complied or will comply in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations and
each of the Registration Statement and the Prospectus (or any supplement or
amendment to either of them) did not or will not at any such times contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) made in reliance upon and in conformity with 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 shares of capital stock of the Fund have been
duly authorized and validly issued, are fully paid and (except as described
in the Prospectus under "Certain Provisions in the Declaration of
Trust")nonassessable and are free of any preemptive or similar rights, the
Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and (except as described in the
Prospectus under "Certain Provisions in the Declaration of Trust")
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 or the Prospectus (or any amendment or supplement to either of
them). Except for the Shares and the shares of common stock issued in
15
accordance with Section 14(a) of the 1940 Act, no other shares of capital
stock are issued or outstanding and the capitalization of the Fund conforms
in all respects to the description thereof in the Registration Statement
and the Prospectus (or any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of the Commonwealth of
Massachusetts, with full business trust power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them) and is duly registered and qualified to conduct business
and is in good standing in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify,
either alone or in the aggregate, does not have or would not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), business, properties, business prospects, net assets or results
of operations, whether or not occurring in the ordinary course of business
(a "Material Adverse Effect") 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 (and any amendment or
supplement to either of them) but are not described as required and there
are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) or to be
filed as an exhibit to the Registration Statement that are not described or
filed as required by the 1933 Act, the 1940 Act or the Rules and
Regulations.
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(f) The Fund is not in violation of its Declaration of Trust
("Declaration"), by-laws or other organizational documents or 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 other agency or any body or official having jurisdiction over
the Fund or in breach or default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound, except for such violation or such breach or
default that, either alone or in the aggregate, does not have or would not
reasonably be expected to have a Material Adverse Effect on the Fund.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or
order of or registration or filing which has not yet been obtained or made
with the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory, body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Fund (except compliance with the securities or Blue
Sky laws of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of the
Declaration, bylaws, or other organizational documents of the Fund or (ii)
(A) conflicts or will conflict with or constitutes or will
17
constitute a breach of or a default under any agreement, indenture, lease
or other instrument to which the Fund is a party or by which it or any of
its properties may be bound or (B) violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Fund pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, except for such conflict,
breach, default, violation or lien, charge or encumberance that, either
alone or in the aggregate, does not have or would not reasonably be
expected to have a Material Adverse Effect on the Fund. As of the date
hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency.
(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 other than those in the ordinary course of its business as
described in the Prospectus (and any amendment or supplement thereto),
except for such transactions that, either alone or in the aggregate, do not
have or would not reasonably be expected to have a Material Adverse Effect
on the Fund 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 the
Statement of Assets and Liabilities included
18
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 or incorporated by reference in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them)
present fairly the financial position of the Fund on the basis stated in
the Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
disclosed therein; and the other financial and statistical information and
data included in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the 1933 Act Rules and Regulations, has taken all required action under the
1933 Act, the 1940 Act and the Rules and Regulations to make the public
offering and consummate the sale of the Shares as contemplated by this
Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and each of the Fund
Agreements have been duly executed and delivered by the Fund and each
constitutes the valid and legally binding agreement of the Fund,
enforceable against the Fund in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the enforceability of
the
19
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 or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them), subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (and any amendment
or supplement to either of them), the Fund has not incurred any liability
or obligation, direct or contingent, except for such liability or
obligation that, either alone or in the aggregate, does not have or would
not reasonably be expected to have a Material Adverse Effect on the Fund or
entered into any transaction, not in the ordinary course of business, and
there has not been any change in the capital stock or any material, adverse
change or any development involving or which should reasonably be expected
to have a Material Adverse Effect on the Fund or a material adverse effect
on its capitalization, or the incurrence of any debt by, the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public any offering material in connection with
the offering and sale of the Shares other than the Registration Statement,
the Prepricing Prospectus included in Pre-Effective Amendment No. 2 to the
registration statement, the Prospectus and the investor sales material (as
hereinafter defined) filed with the NASD on October [28], 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
20
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 the Board of Trustees' general
or specific authorization and with the investment policies and restrictions
of the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Code; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles, to calculate net asset value and
fee accruals, to maintain accountability for assets and to maintain
compliance with the books and records requirements under the 1940 Act and
the 1940 Act Rules and Regulations; (iii) access to assets is permitted
only in accordance with the Board of Trustees' general or specific
authorization; and (iv) the recorded account for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor 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
21
indirectly, any action designed to or which should reasonably be expected
to cause or result in or which will constitute stabilization or
manipulation of the price of the Shares in violation of federal securities
laws and the Fund is not aware of any such action taken or to be taken by
any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act and the Rules and
Regulations 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, the 1940 Act Notification conformed in all material
respects with all applicable provisions of the 1940 Act and the Rules and
Regulations; the Fund has received no order of suspension or revocation of
such registration under the 1940 Act and the 1940 Act Rules and Regulations
and, to the knowledge of the Fund, no such order has been issued or
proceedings therefor initiated or threatened by the Commission. The
provisions of the Declaration, and the investment policies and restrictions
described in each of the Registration Statement and the Prospectus, comply
in all material respects with the requirements of the 1940 Act and the 1940
Act Rules and Regulations.
(t) All advertising, sales literature or other promotional material
(including "prospecting letters" and "prospectus wrappers" (collectively,
"investor sales material") and "broker kits," "road show slides," "road
show scripts," "broker post-cards" and "broker reference cards"
(collectively, "broker sales material") authorized in writing by or
prepared by the Fund or the Adviser for use in connection with the offering
and sale of the Shares (investor sales material and broker sales material
is collectively referred to as "sales material")) complied and comply in
all respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and, if
required to be filed with the NASD under the NASD's conduct rules, were so
filed and no such sales material, when read together with the
22
Prospectus, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act, the 1940
Act, the Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and the rules and regulations of the
Commission promulgated under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of any Shares, capital stock or any other security of the Fund
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Fund and the Adviser intend to direct the investment of the
proceeds of the offering of the Shares in such a manner as to comply with
the requirements of Subchapter M of the Code.
(x) In the event that the Fund or the Adviser makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Fund or the Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed effectively to prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof in a manner consistent with the Rules and
Regulations and the interpretations thereof of the SEC and its staff.
(y) The Fund has not received, and to the knowledge of the Fund, the
Commission has not issued any order preventing or suspending the use of any
Prepricing
23
Prospectus or the Prospectus.
(z) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no trustee
of the Fund is an "interested person" (as defined in the 0000 Xxx) of the
Fund or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter listed in Schedule I hereto.
(aa) The Shares have been approved for listing on the AMEX and the
Fund's registration statement on Form 8-A under the 1934 Act has become
effective.
7. Representations and Warranties of the Adviser. The Adviser represents
and warrants to each Underwriter as follows:
(a) The Adviser is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in each of the Registration Statement
and the Prospectus (or any amendment or supplement to either of them) and
is duly registered and qualified to conduct business and is in good
standing in each jurisdiction or place where the nature of its properties
or conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify would not have a
Material Adverse Effect on the Adviser or the Fund.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Investment Management
Agreement for the Fund as contemplated by the Registration Statement or the
Prospectus (or any amendment or supplement to either of them). There does
not exist any proceeding which could
24
have a material adverse affect on the registration of the Adviser with the
Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Adviser, threatened against the Adviser that are required
to be described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) but are not described as
required or that would reasonably be expected to result in any Material
Adverse Effect on the Adviser or that would be reasonably expected to have
a material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement or the Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of
this Agreement, the Investment Management Agreement, the Expense
Reimbursement Agreement or the Subscription Agreement for Common Shares of
the Fund dated November 3, 2003 (the "Subscription Agreement," this
Agreement, the Investment Management Agreement, the Expense Reimbursement
Agreement and the Subscription Agreement being referred to herein as the
"Adviser Agreements"), nor the consummation by the Adviser of the
transactions contemplated hereby or thereby (i) requires the Adviser to
obtain any consent, approval, authorization or other order of, or
registration or filing which has not yet been made or obtained with, the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Adviser (except compliance with 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 bylaws, or other
organizational documents of the Adviser or (ii) conflicts or will conflict
with or constitutes or will
25
constitute a material breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Adviser is a party or by
which the Adviser or any of its properties may be bound, or materially
violates or will materially violate any material statute, law, regulation
or judgment, injunction, order or decree applicable to the Adviser or any
of its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of the
Adviser pursuant to the terms of any agreement or instrument to which it is
a party or by which it may be bound or to which any of the property or
assets of the Adviser is subject, except in any case under clause (i) or
(ii) as would not have a material adverse effect on the ability of the
Adviser to perform its obligations under any of the Adviser Agreements. The
Adviser is not subject to any order of any court or of any arbitrator,
regulatory body, administrative agency or other governmental body, agency
or official.
(e) The Adviser has full power and authority to enter into each of
the Adviser Agreements, the execution and delivery of, and the performance
by the Adviser of its obligations under, each of the Adviser Agreements
have been duly and validly authorized by the Adviser and each of the
Adviser Agreements have been duly executed and delivered by the Adviser and
constitute the valid and legally binding agreements of the Adviser,
enforceable against the Adviser in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles whether enforcement is
considered in a proceeding in equity or at law.
(f) The Adviser has the financial resources available to it necessary
for the performance of its
26
services and obligations as contemplated in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them) or under
each of the Adviser Agreements.
(g) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) complied
and comply in all material respects with the provisions of the 1933 Act,
the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them), except as otherwise stated therein, (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
the Adviser, whether or not arising from the ordinary course of business
and (ii) there have been no transactions entered into by the Adviser which
are material to the Adviser other than those in the ordinary course of its
business as described in the Prospectus.
(i) The Adviser has such 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 Adviser has fulfilled and
performed all its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Adviser under any such permit.
27
(j) None of the Adviser Agreements violate any applicable provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and
the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the foregoing),
the Adviser has not taken and will not take, directly or indirectly, any
action designed to or which would reasonably be expected to cause or result
in or which will constitute stabilization or manipulation of the price of
the Shares or of any securities issued by the Fund to facilitate the sale
or resale of the Shares, in each case, in violation of federal securities
laws and the Adviser is not aware of any such action taken or to be taken
by any affiliates of the Adviser.
8. Indemnification and Contribution.
(a) The Fund and the Adviser, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter 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 (as defined in Section 6(t) of this
Agreement) (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
28
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 indemnification contained in this paragraph (a) with respect to
the Registration Statement, the Prospectus or any Prepricing Prospectus (or
any amendment to any of the foregoing) shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any
person if it is shown that a copy of the Prospectus (which term as used in
this proviso shall not include any statement of additional information), as
then amended or supplemented, was not delivered or sent to such person
within the time required by the 1933 Act and the 1933 Act Rules and
Regulations and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in the
Registration Statement, the Prospectus or any Prepricing Prospectus was
corrected in the Prospectus, as then amended or supplemented, provided that
the Fund has delivered the Prospectus, as then amended or supplemented, to
the several Underwriters in requisite quantity on a timely basis to permit
proper delivery or sending. The foregoing indemnity agreement shall be in
addition to any liability which the Fund or the Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Adviser, such Underwriter
or such controlling person shall promptly notify the Fund or the Adviser
and the Fund or the Adviser shall assume the defense thereof, including the
employment of counsel and the payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to
29
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 Adviser have agreed in writing to pay such fees
and expenses, (ii) the Fund or the Adviser have failed within a reasonable
time to assume the defense and employ counsel or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and the Fund or
the Adviser 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 Adviser by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Adviser shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Underwriter or such controlling person). It
is understood, however, that the Fund and the Adviser shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel if there is any action, suit or proceeding in
more than one jurisdiction) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests with
you or among themselves, which firm shall be designated in writing by the
Representatives and that, subject to the requirements of 1940 Act Release
No. 11330, all such fees and expenses shall be reimbursed promptly as they
are incurred. The Fund and the Adviser shall not be liable for any
settlement of any such action, suit or proceeding effected without the
written consent of the Fund or the Adviser, 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 Adviser
30
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 Adviser, their trustees or directors,
any officers of the Fund who sign the Registration Statement and any person
who controls the Fund or the Adviser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, to the same extent as the
foregoing indemnity from the Fund and the Adviser 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 any Prepricing Prospectus
(or any amendment or supplement thereto). If any action, suit or proceeding
shall be brought against the Fund or the Adviser, any of their trustees or
directors, any such officer or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus (or any
amendment or supplement thereto) and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to each of the Fund and
the Adviser by paragraph (b) above (except that if the Fund or the Adviser
shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be
at such Underwriter's expense) and the Fund and the Adviser, their trustees
or directors, any such officer and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this
31
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 Adviser on
the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Fund and the Adviser on the one hand (treated jointly for this purpose as
one person) and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Adviser
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Fund bear to the total underwriting discounts and
commissions received by the Underwriters, in each case, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Fund
and the Adviser on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund and the Adviser
on the one hand (treated jointly for this purpose as one person) or by the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
32
(e) The Fund, the Adviser, 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 investigating any claim or 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 fees and commissions received by it in connection with the
Shares underwritten by it and distributed to the public. 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 Shares set forth opposite their names in Schedule I
(or such number of Shares increased as set forth in Section 10 hereof) and
not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to
33
indemnification or contribution under this Section 8 shall, subject to the
requirements of Release No. 11330, 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 each of the Fund and
the Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Fund, the
Adviser, or their trustees, directors, officers or any person controlling
the Fund or the Adviser, (ii) acceptance of any Shares and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund or the Adviser or their trustees, directors,
officers or any person controlling the Fund or the Adviser shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
(h) The Fund and the Adviser each acknowledge that the statements
with respect to (1) the public offering price of the Shares as set forth on
the cover page of the Prospectus and (2) under the caption "Underwriting"
in the Prospectus, (i) the names of the Underwriters and the number of
Shares listed opposite such names in the table following the first
paragraph, (ii) the amounts of selling concessions and reallowances of
selling concessions, (iii) the tenth paragraph relating to confirmation of
sales to discretionary accounts, (iv) the twelfth, thirteenth and
fourteenth paragraphs relating to stabilization and (v) the last paragraph
relating to the addresses of the lead managers constitute the only
information furnished in writing to the Fund by the Underwriters expressly
for use in such document. The Underwriters severally confirm that these
statements are correct in all material respects and were so furnished by or
on behalf of the Underwriters severally for use in the Prospectus.
34
(i) The indemnification provisions of this Section 8 that are
applicable to the Fund are subject to any applicable limitations and
provisions of Section 17(i) of the 1940 Act.
9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Shares hereunder are subject to the accuracy of
and compliance with the representations, warranties and agreements of and by
each of the Fund and the Adviser contained herein on and as of the date on which
the Registration Statement becomes or became effective, the date of the
Prospectus (and of any amendment or supplement thereto) and the Closing Date
and, with respect to any Additional Shares, any Option Closing Date; to the
accuracy and completeness of all statements made by the Fund, the Adviser, or
any of their respective 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 and the 1933 Act Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act shall have been
issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Fund, the Adviser or any Underwriter, threatened by
the Commission and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
35
(b) 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,
properties, net assets, or results of operations of the Fund or the Adviser
not contemplated by the Prospectus, which in your opinion, would materially
adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Fund or the Adviser or any
officer, trustee, or director of the Fund or the Adviser, which makes any
statement made in the Prospectus untrue or which, in the opinion of the
Fund and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations or any other law to be stated therein or necessary in order to
make the statements therein not misleading, if amending or supplementing
the Prospectus to reflect such event or development would, in your opinion,
materially adversely affect the market for the Shares.
(c) That you shall have received on the Closing Date an opinion of
Xxxx, Xxxx & Xxxxx LLC, special counsel for the Fund, dated the Closing
Date and addressed to you, as the Representatives of the several
Underwriters, in substantially the form attached hereto as Exhibit A. In
rendering its opinion, Xxxx, Xxxx & Xxxxx LLC may rely, as to matters of
Massachusetts law, upon the opinion of Xxxxxxx XxXxxxxxx LLP dated as of
the date thereof.
(d) That you shall have received on the Closing Date an opinion of
the Adviser's internal counsel, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, in substantially the
form attached hereto as Exhibit B.
(e) That you shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), dated the Closing Date and
addressed to you, as the Representatives of the several underwriters,
36
with respect to such matters as you may require and the Fund, the Adviser,
and their respective counsel shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass upon
such matters. In rendering its opinion, Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois) may rely, as to matters of Massachusetts law, upon the
opinion of Xxxxxxx XxXxxxxxx LLP dated as of the date thereof
(f) That you shall have received letters addressed to you, as the
Representatives of the several Underwriters and dated each of the date
hereof and the Closing Date from Ernst & Young LLP, independent certified
public accountants, substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement to any of the foregoing) or any Prepricing
Prospectus or any sales material shall have been issued and no proceedings
for such purpose or for the purpose of commencing an enforcement action
against the Fund or the Adviser, with respect to the transactions
contemplated by the Prospectus (or any amendment or supplement thereto) and
this Agreement, may be pending before or, to the knowledge of the Fund, the
Adviser, or any Underwriter or in the reasonable view of counsel to the
Underwriters, shall be threatened or contemplated by the Commission at or
prior to the Closing Date and that any request for additional information
on the part of the Commission (to be included in the Registration
Statement, the Prospectus or otherwise) be complied with to the
satisfaction of the Representatives, (ii) there shall not have been any
change in the capital stock of the Fund nor any increase in debt of the
Fund from that set forth in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) and the Fund shall not
have sustained any material liabilities or obligations, direct or
contingent, other than those reflected in or contemplated by the
Registration Statement or the Prospectus (or any
37
amendment or supplement to either of them), (iii) since the date of the
Prospectus there shall not have been any material, adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Adviser, (iv) neither the Fund
nor the Adviser shall have sustained any material loss or interference with
their businesses from any court or from legislative or other governmental
action, order or decree or from any other occurrence not described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them), and (v) all of the representations and warranties of each
of the Fund or the Adviser contained in this Agreement shall be true and
correct on and as of the date hereof and as of the Closing Date as if made
on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a prospective
change, in or affecting the condition (financial or other), general
affairs, business, prospects, properties, net assets or results of
operations of the Fund or the Adviser not contemplated by the Prospectus
(and any amendment or supplement thereto), which in your opinion, as the
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 Adviser, or any officer, trustee, director,
of the Fund or the Adviser, 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, the Advisers Act, the Advisers Act 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)
38
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 the Representatives of the several Underwriters,
materially, adversely affect the market for the Shares.
(i) That none of the Fund or the Adviser shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with
by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of each of the chief executive officer and chief financial
officer of each of the Fund and the Adviser certifying that (i) the signers
have carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements to either of them) and this Agreement, (ii) the
representations and warranties of the Fund (with respect to the
certificates from such Fund officers) and the representations and
warranties of the Adviser (with respect to the certificates from such
officers of the Adviser) in this Agreement are true and correct on and as
of the date of the certificate as if made on such date, (iii) since the
date of the Prospectus (and any amendment or supplement thereto) there has
not been any material, adverse change in the condition (financial or
other), business, prospects (other than as a result of a change in the
financial markets generally), properties, net assets or results of
operations of the Fund (with respect to the certificates from such Fund
officers) or the Adviser (with respect to the certificates from such
officers of the Adviser), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Adviser (with respect to the
certificates from such officers of the Adviser) has been issued and no
39
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Adviser (with respect to
certificates from such officers of the Adviser) has performed and complied
with all agreements that this Agreement require it to perform by such
Closing Date, (vi) none of the Fund (with respect to the certificate from
such officers of the Fund) or the Adviser (with respect to the certificate
from such officers of the Adviser) 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 or the Prospectus and any amendment
or supplement to either of them and (vii) with respect to the certificate
from such officers of the Fund, there has not been any change in the
capital stock of the Fund nor any increase in the debt of the Fund from
that set forth in the Prospectus (or any amendment or supplement thereto)
and the Fund has not sustained any material liabilities or obligations,
direct or contingent, other than those reflected in the Prospectus (or any
amendment or supplement thereto).
(k) That the Fund and the Adviser shall have furnished to you such
further letters, certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the Fund
and the Adviser).
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
Adviser and delivered to you, as the
40
Representatives of the Underwriters or to Underwriters' counsel, shall be deemed
a representation and warranty by the Fund or the Adviser to each Underwriter as
to the statements made therein.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund and the Adviser contained herein on
and as of the Option Closing Date as though made on any Option Closing Date,
(ii) satisfaction on and as of any Option Closing Date of the conditions set
forth in this Section 9 except that, if any Option Closing Date is other than
the Closing Date, the certificates, opinions and letters referred to in Sections
9 (c), (d), (e), (f) and (j) and this paragraph shall be dated the Option
Closing Date in question and the opinions and/or letters called for by Sections
9 (c), (d), (e) and (f) shall be revised to reflect the sale of Additional
Shares and (iii) the absence of circumstances on or prior to the Option Closing
Date which would permit termination of this Agreement pursuant to Section 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 the Registration
Statement or such post-effective amendment has become effective. Until such time
as this Agreement shall have become effective, it may be terminated by the Fund
by notifying you, or by you by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they have agreed to purchase hereunder and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares, each non-defaulting Underwriter shall be obligated, severally, in
the proportion which
41
the aggregate number of Shares set forth opposite its name in Schedule I hereby
bears to the aggregate number of Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 7 of the X.X. Xxxxxxx Master Agreement Among
Underwriters, to purchase Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares and arrangements satisfactory to you and the Fund for
the purchase of such Shares by one or more non-defaulting Underwriters or other
party or parties approved by you and the Fund are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect to any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Shares which a defaulting
Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund or the Adviser by notice to the Fund or the Adviser if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on
42
the New York Stock Exchange or AMEX shall have been suspended or limited or
minimum prices shall have been established (ii) additional governmental
restrictions not in force on the date of this Agreement have been imposed upon
trading in securities generally or a general moratorium on commercial banking
activities shall have been declared by Federal or any state's authorities or
(iii) any outbreak or material escalation of hostilities or other international
or domestic calamity, crisis or change in political, financial, economic, legal
or regulatory conditions, occurs, the effect of which is such as to make it, in
your judgment, impracticable or inadvisable to commence or continue the offering
of the Shares at the offering price to the public set forth on the cover page of
the Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Fund or the Adviser
by telegram, telecopy or telephone but shall be subsequently confirmed by
letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing or registration fees prescribed by
the 1933 Act, the 1934 Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits thereto), the
Prospectus, each Prepricing Prospectus and the 1940 Act Notification and all
amendments or supplements to any of them, (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each
Prepricing Prospectus, any sales material (and all amendments or supplements to
any of them) as may be reasonably requested for use in connection with the
offering and sale of the Shares, (c) the preparation, printing, authentication,
issuance and delivery of certificates (if any) for the Shares, including any
stamp taxes and transfer agent and registrar fees payable in connection with the
original issuance and sale of such Shares, (d) the registrations or
qualifications of the Shares for offer and sale under the securities or Blue Sky
laws of
43
the several states as provided in Section 5(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification), (e)
the fees and expenses of the Fund's independent accountants, counsel for the
Fund and of the transfer agent, (f) the 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, (g) 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, (h) the filing fees paid by, 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 by the NASD of the offering of the Shares and of the sales materials,
which fees and expenses of counsel, together with the fees, expenses and
disbursements of counsel set forth in paragraph (d) of this Section 12 above,
shall not exceed $15,000, exclusive of NASD and state filing fees paid by such
counsel, (i) the transportation, lodging, graphics and other expenses related to
the Fund's preparation for and participation in the roadshow, (j) the listing of
the Shares on the AMEX and (k) an amount equal to $20,000 plus $0.0025 per Share
for each Share in excess of two million sold pursuant to this Agreement, payable
on the Closing Date to the Representatives in partial reimbursement of their
expenses (but not including reimbursement for the cost of one tombstone
advertisement in a newspaper that is one-quarter of a newspaper page or less in
size) in connection with the offering. Nuveen Investments, LLC has agreed to pay
organizational expenses and offering costs of the Fund (other than sales load)
that exceed $0.03 per Common Share.
44
Notwithstanding the foregoing, in the event that the sale of the Shares is
not consummated pursuant to Section 2 hereof, the Adviser will pay the costs and
expenses of the Fund set forth above in this Section 12(a) through (i), and
reimbursements of Underwriter expenses in connection with the offering shall be
made in accordance with Section 5(l) hereof.
13. 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 Adviser, c/o Nuveen
Advisory Corp., 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
X. Berkshire, and (b) if to you, as Representatives of the Underwriters, at the
office of X.X. Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxx, Esq.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Adviser, their trustees, directors, 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 Amended and Restated 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 a 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 of the
Fund or the shareholders of the Fund individually, but are binding only upon the
assets and property of the Fund.
45
14. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
46
Please confirm that the foregoing correctly sets forth the agreement among
the Fund, the Adviser, and the several Underwriters.
Very truly yours,
NUVEEN MUNICIPAL HIGH INCOME
OPPORTUNITY FUND
By:
-------------------------------------
Title:
NUVEEN ADVISORY CORP.
By:
-------------------------------------
Title:
47
Confirmed as of the date
first above written on
behalf of themselves and
the other several Under-
writers named in Schedule
I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
X.X. XXXXXXX & SONS, INC.
By:
-------------------------------
Title:
SCHEDULE I
Underwriter Number of Shares
----------- ----------------
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Nuveen Investments, LLC
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
Quick & Xxxxxx, Inc., A FleetBoston Financial Company
RBC Xxxx Xxxxxxxx, Inc.
TD Waterhouse Investor Services, Inc.
48
EXHIBIT A
Form of Xxxx Xxxx & Xxxxx LLC Opinion
i. The Registration Statement and all post-effective amendments, if any, are
effective under the Act and, to the best of our knowledge after due inquiry, no
stop order with respect thereto has been issued and no proceeding for that
purpose has been instituted or is threatened by the Commission. Any filing of
the Prospectus or any supplements thereto required under Rule 497 under the Act
prior to the date hereof have been made in accordance with such rule.
ii. The Fund has been duly formed and is validly existing as a business
trust in good standing under the laws of the Commonwealth of Massachusetts, with
full business trust power to conduct all the activities conducted by it, to own
or lease all assets owned (or to be owned) or leased (or to be leased) by it and
to conduct its business, all as described in the Registration Statement and
Prospectus, and the Fund is duly licensed and qualified to do business and in
good standing in each jurisdiction in which its ownership or leasing of property
or its conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing, either alone or in the
aggregate, would not have a material adverse effect on the Fund, and, to the
best of our knowledge after due inquiry, the Fund owns, possesses or has
obtained and currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether foreign or domestic,
necessary to carry on its business as contemplated in the Prospectus, except
where the failure to obtain such licenses, permits, consents, orders, approvals
and other authorizations, either alone or in the aggregate, would not have a
material adverse effect on the Fund.
iii. The number of authorized, issued and outstanding shares of Common Shares
of the Fund is as set forth in the Registration Statement and the Prospectus
under the caption Description of Shares--Common Shares" and in the statement of
additional information under the caption "Financial Statements--Statements of
Assets and Liabilities as of
49
November 3, 2003." The Common Shares of the Fund conform in all material
respects to the description of them in the Prospectus under the caption
"Description of Shares --Common Shares." All the outstanding Common Shares have
been duly authorized and are validly issued, fully paid and (except as described
in the Prospectus under "Certain Provisions in the Declaration of Trust")
nonassessable. The Shares to be issued and delivered to and paid for by the
Underwriters in accordance with the Underwriting Agreement against payment
therefor as provided by the Underwriting Agreement have been duly authorized and
when issued and delivered to the Underwriters as so provided will have been
validly issued and will be fully paid and (except as described in the Prospectus
under "Certain Provisions in the Declaration of Trust") nonassessable. No person
is entitled to any preemptive or other similar rights with respect to the Shares
under the Declaration of Trust or by-laws of the Fund or under Massachusetts law
or, to counsel's knowledge, otherwise.
iv. The Fund is duly registered with the Commission under the 1940 Act as a
diversified, closed-end management investment company and all action under the
1933 Act and the 1940 Act, as the case may be, necessary to make the public
offering and consummate the sale of the Shares as provided in the Underwriting
Agreement has been taken by the Fund.
v. The Fund has full business trust power to enter into each of the
Underwriting Agreement, the Investment Management Agreement, the Custody
Agreement, the Transfer Agency Agreement and the Expense Reimbursement
Agreement, (the Investment Management Agreement, the Custody Agreement, the
Transfer Agency Agreement and the Expense Reimbursement Agreement are referred
to collectively as the "Fund Agreements") and to perform all of the terms and
provisions thereof to be carried out by it and (A) each of the Underwriting
Agreement and the Fund Agreements has been duly and validly authorized, executed
and delivered by the Fund, (B) each of the Underwriting Agreement and each Fund
Agreement complies in all material respects with all applicable provisions of
the 1940 Act and the Advisers Act, as the case may be, and (C) assuming due
authorization, execution and delivery by the other parties thereto and that
50
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, each Fund Agreement constitutes the legal,
valid and binding obligation of the Fund enforceable against the Fund in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
vi. None of (A) the execution and delivery by the Fund of the Underwriting
Agreement or the Fund Agreements, (B) the issue and sale by the Fund of the
Shares as contemplated by the Underwriting Agreement and (C) the performance by
the Fund of its obligations under the Underwriting Agreement and the Fund
Agreements or consummation by the Fund of the other transactions contemplated by
the Underwriting Agreement and the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Fund or any material agreement or instrument to
which the Fund is a party or by which the Fund is bound that is filed as an
exhibit to the Registration Statement, or any law, rule or regulation which in
our experience is normally applicable to transactions of the type contemplated
by the Underwriting Agreement, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, specifically naming the Fund and known to us, except that
we express no opinion as to the securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement and except that, in the published opinion
of the Commission, the indemnification provisions in the Underwriting 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.
vii. No consent, approval, authorization or order of any
51
court (to counsel's knowledge) or governmental agency or body or securities
exchange or association, whether foreign or domestic, is required by the Fund
for the consummation by the Fund of the transactions to be performed by the Fund
or the performance by the Fund of all the terms and provisions to be performed
by or on behalf of it in each case as contemplated in the Underwriting Agreement
and the Fund Agreements, except such as (A) have been obtained under the federal
securities laws and (B) may be required by the AMEX or under state securities or
"blue sky" laws in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to the Underwriting Agreement.
viii. The Shares have been approved for listing on the AMEX, subject to official
notice of issuance, and the Fund's Registration Statement on Form 8-A under the
1934 Act is effective.
ix. Other than as described in or contemplated by the Prospectus, to the
best of our knowledge after due inquiry, there are no legal or governmental
proceedings pending or threatened against the Fund.
x. The Fund does not require any tax or other rulings to enable it to
qualify as a regulated investment company under Subchapter M of the Code.
xi. The section in the Prospectus entitled "Taxes" and the section in the
Statement of Additional Information entitled "Taxes", to the extent they
describe or summarize tax laws, doctrines or practices in the United States,
legal matters, agreements, documents or proceedings discussed therein, present
an accurate description or fair summary thereof as of the date of this opinion.
xii. The Registration Statement, at the time it became effective, and the
Prospectus, as of the date thereof (in each case except for the financial
statements and schedules including the notes and schedules thereto, and other
financial, statistical or accounting data included therein or omitted therefrom,
as to which we express no view), complied
52
as to form in all material respects with the requirements of the Act and the
1940 Act.
While we have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus, except to the limited extent set forth in paragraph (xi) above,
in the course of our review of the contents of the Registration Statement and
the Prospectus with certain officers and employees of the Fund and the Fund's
independent accountants, no facts have come to our attention that cause us to
believe that the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that we express no view with respect to the
financial statements, including notes and schedules thereto, or any other
financial, statistical or accounting data included therein), or that the
Prospectus, as of the date it was filed with the Commission pursuant to Rule 497
under the Act and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that we express
no view with respect to the financial statements, including notes and schedules
thereto, or any other financial, statistical or accounting data included
therein).
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EXHIBIT B
Form of Nuveen Advisory Corp.'s Internal Counsel Opinion
i. The Adviser has been duly formed and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with full power and
authority to own or lease all of the assets owned or leased by it and to conduct
its business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under the Underwriting Agreement and the
Investment Management Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the 1940 Act from acting as
investment adviser for the Fund as contemplated by the Investment Management
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the
Underwriting Agreement, the Investment Management Agreement and the Expense
Reimbursement Agreement (the Investment Management Agreement and the Expense
Reimbursement Agreement are referred to collectively as the "Adviser
Agreements") and to carry out all the terms and provisions thereof to be carried
out by it, and each such agreement has been duly and validly authorized,
executed and delivered by the Adviser; each of the Underwriting Agreement and
each Adviser Agreement complies in all material respects with all provisions of
the 1940 Act and the Advisers Act; and assuming due authorization, execution and
delivery by the other parties thereto and that performance of each Adviser
Agreement 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, each Adviser Agreement constitutes a legal, valid and binding
obligation of the Adviser, enforceable against the Adviser in accordance with
its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general equitable
54
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) except as rights to indemnity thereunder may be
limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of the Underwriting
Agreement or any Adviser Agreement nor (B) the consummation by the Adviser of
the transactions contemplated by, or the performance of its obligations under
the Underwriting Agreement or any Adviser Agreement conflicts or will conflict
with, or results or will result in a breach of, the charter or by-laws of the
Adviser or any agreement or instrument to which the Adviser is a party or by
which the Adviser is bound, or any federal law, rule or regulation, any
provision of the Delaware General Corporation Law or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to
counsel, except in each case for such conflicts or breaches which do not, either
alone or in the aggregate, have a material adverse effect on the Adviser's
ability to perform its obligations under the Underwriting Agreement and the
Adviser Agreements, and except that, in the published opinion of the Commission,
the indemnification provisions in the Underwriting Agreement and the Adviser
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.
v. No consent, approval, authorization or order of any court (to my
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the Adviser of its
obligations under, the Underwriting Agreement and any Adviser Agreement, except
(i) such as have been obtained under the federal securities laws and (ii) may be
required by the New York Stock Exchange or under state securities or "blue sky"
laws, in connection with the purchase and distribution of the Shares by the
Underwriters pursuant to the Underwriting Agreement.
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vii. To the best of my knowledge after due inquiry, there is no legal or
governmental proceeding pending or threatened against the Adviser that is either
(i) required to be described in the Registration Statement or Prospectus that is
not already described or (ii) which would, under Section 9 of the Investment
Company Act, make the Adviser ineligible to act as the Fund's investment
adviser.
I have not checked the accuracy and completeness of or otherwise verified,
and am not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus. We have participated in conferences with representatives of the
Adviser at which the contents of the Registration Statement and Prospectus were
discussed. No facts have come to my attention that cause me to believe that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (except that I express no view with respect to the
financial statements, including notes and schedules thereto, or any other
financial, statistical or accounting data included therein), or that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Prospectus, as of the date it was filed with the Commission
pursuant to Rule 497 under the Act and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except that I
express no view with respect to the financial statements, including notes and
schedules thereto, or any other financial, statistical or accounting data
included therein).
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