[_____________] Shares
NUVEEN REAL ESTATE INCOME FUND
Common Shares
UNDERWRITING AGREEMENT
November [15], 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
Gruntal & Co., L.L.C.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
McDonald Investments Inc., a KeyCorp Company
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen Real Estate Income Fund, a Massachusetts business
trust (the "Fund"), Nuveen Institutional Advisory Corp., a Delaware corporation
(the "Investment Adviser"), and Security Capital Research & Management
Incorporated, a Delaware corporation (the "Subadviser", and together with the
Investment Adviser, the "Advisers"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of [________]
shares (the "Firm Shares") of its common shares of beneficial interest, $0.01
par value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional [_________] Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Advisers wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Investment Adviser dated October 3, 2001, an exchange traded fund custody
agreement with JPMorgan Chase Bank dated October 29, 2001 and a shareholder
transfer agency agreement with JPMorgan Chase Bank dated October 29, 2001, and
such agreements are herein referred to as the "Management Agreement", the
"Custodian Agreement" and the "Transfer Agency Agreement", respectively. The
Investment Adviser is entering into an investment sub-advisory agreement with
the Subadviser dated October 3, 2001 and such agreement is herein referred to as
the "Sub-Advisory Agreement". Collectively, the Management Agreement, the
Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agency
Agreement are herein referred to as the "Fund Agreements". This Underwriting
Agreement is herein referred to as the "Agreement".
1. Registration Statement and Prospectus. The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File No. 333-68948) under the 1933 Act and
the 1940 Act and may pursuant to the Rules and Regulations prepare and file an
additional registration statement relating to a portion of the Shares pursuant
to Rule 462(b) of the 1933 Act Rules and Regulations (collectively, the
"registration statement"), including a prospectus (including any statement of
additional information) relating to the Shares and a notification of
registration of the Fund as an investment company under the 1940 Act on Form
N-8A (the "1940 Act Notification"). The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective under the
1933 Act or, if the registration statement became effective under the 1933 Act
prior to the execution of this Agreement, as amended or supplemented thereto,
prior to the execution of this Agreement and includes any information deemed to
be included by Rule 430A under the 1933 Act Rules and Regulations. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed under the 1933 Act and
must be declared effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Prospectus" as
used in this Agreement means the prospectus (including the statement of
additional information) in the form included in the Registration Statement or,
if the prospectus (including the statement of additional information) included
in the Registration Statement omits information in reliance on Rule 430A and
such information is included in a prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497(h) under
the 1933 Act Rules and Regulations, the term "Prospectus" as used in this
Agreement means the prospectus (including the statement of additional
information) in the form included in the Registration Statement as supplemented
by the addition of the information contained in the prospectus (including the
statement of additional information) filed with the Commission pursuant to Rule
497(h). The term "Prepricing Prospectus" as used in this Agreement means the
prospectus (including the statement of additional information) subject to
completion in the form included in the registration statement at the time of the
initial filing of the registration statement with the Commission and as
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such prospectus (including the statement of additional information) shall have
been amended from time to time prior to the date of the Prospectus, together
with any other prospectus (including any other statement of additional
information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such registration
statement, each amendment to such registration statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to all
the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Advisers herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Advisers herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of [_________] Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Advisers herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Advisers have been advised
by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
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4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares and payment of all amounts due to the Underwriters under
Section 12 hereof shall be made at the office of Xxxxxxx Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of
the Depository Trust Company or another mutually agreeable facility, at
9:00 A.M., New York City time, on November [20], 2001 (the "Closing Date").
The place of closing for the Firm Shares and the Closing Date may be varied
by agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and payment of all
amounts due to the Underwriters under Section 12 hereof shall be made at
the aforementioned office of Xxxxxxx Xxxxx Barney Inc. at such time on such
date (an "Option Closing Date"), which may be the same as the Closing Date,
but shall in no event be earlier than the Closing Date nor earlier than two
nor later than three business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you
on behalf of the Underwriters to the Fund of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Shares. The place of closing for any Additional Shares and the Option
Closing Date for such Additional Shares may be varied by agreement between
you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares
shall be registered in such names and in such denominations as you shall
request prior to 1:00 P.M., New York City time, (i) in respect of the Firm
Shares, on the second business day preceding the Closing Date and (ii) in
respect of Additional Shares, on the day of the giving of the written
notice in respect of such Additional Shares. Such certificates will be made
available to you in New York City for inspection and packaging not later
than 9:00 A.M., New York City time, on the business day next preceding the
Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase
price therefor in same-day funds to the order of the Fund.
5. Agreements of the Fund and the Advisers. The Fund and the Advisers,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as
4
practicable, but no later than the second business day following the
earlier of the date of the determination of the offering price of the
Shares or the date the Prospectus is first used after the effective date of
the Registration Statement. If the Registration Statement has become
effective and the Prospectus contained therein does not so omit such
information, the Fund will file a Prospectus pursuant to Rule 497 (c) or
(j) of the 1933 Act Rules and Regulations as promptly as practicable, but
no later than the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of the
public offering of the Shares after the effective date of the Registration
Statement. The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement or such
post-effective amendment has become effective, (ii) when the Prospectus has
been timely filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act
Rules and Regulations or the certification permitted pursuant to Rule
497(j) of the 1933 Act Rules and Regulations has been timely filed,
whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official suspending the
effectiveness of the Registration Statement, prohibiting or suspending the
use of the Prospectus, any Prepricing Prospectus or any sales material (as
hereinafter defined), of any notice pursuant to Section 8(e) of the 1940
Act, of the suspension of qualification of the Shares for offering or sale
in any jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by the Fund, the
Advisers, any affiliate of the Fund or the Advisers or any representative
or attorney of the Fund or the Advisers of any other material communication
from the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official relating to the Fund (if such communication relating to the Fund
is received by such person within three years after the date of this
Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material, adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Advisers or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as herein defined) (or any amendment or supplement to any
of the foregoing) untrue or which requires the making of any additions to
or changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as herein defined) (or any amendment or
supplement to any of the foregoing) in order to state a material fact
5
required by the 1933 Act, the 1940 Act or the Rules and Regulations to be
stated therein or necessary in order to make the statements therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading or of the necessity to amend or supplement the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as herein defined) (or any amendment or supplement to any
of the foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law or order of any court or regulatory body. If
at any time the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing) or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, the Fund will use its reasonable best efforts to obtain the
withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from the
date of this Agreement and (y) the date on which the distribution of the
Shares is completed) and will also furnish to you, without charge, such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Shares is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the registration
statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers,
6
prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
7
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish
to you (i) as soon as available, a copy of each report of the Fund mailed
to shareholders or filed with the Commission and (ii) from time to time
such other information concerning the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Advisers to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Advisers,
jointly and severally, agree to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Advisers shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Advisers have taken, nor will any of them take, directly
or indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Shares or any other Securities issued by the Fund to facilitate the
sale or resale of the Common Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX")
8
concurrently with the effectiveness of the registration statement and to
comply with the rules and regulations of such exchange.
6. Representations and Warranties of the Fund and the Advisers. The Fund
and the Advisers, jointly and severally, represent and warrant to each
Underwriter that, as of the date hereof or at such other time or times
identified below:
(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.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure
9
so to register or to qualify does not have a material, adverse effect on
the condition (financial or other), business, properties, net assets or
results of operations of the Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or
By-Laws or of any material law, ordinance, administrative or governmental
rule or regulation applicable to the Fund or of any material decree of the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official having
jurisdiction over the Fund or in breach or default in any material respect
in the performance of any obligation, agreement or condition contained in
any material bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing with the Commission, the NASD, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or
By-Laws of the Fund or (B) conflicts or will conflict with or constitutes
or will constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or materially violates or
will materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Fund
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Fund is subject.
10
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by the
Fund which are material to the Fund other than those in the ordinary course
of its business as described in the Prospectus (and any amendment or
supplement thereto) and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Xxxxxx Xxxxxxxx LLP, who have audited or shall
audit the Statement of Assets and Liabilities included or incorporated by
reference 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 Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of, and the performance by the Fund of
its obligations under, this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
11
(m) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is given in
the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), the Fund has not incurred any liability or
obligation, direct or contingent or entered into any transaction, not in
the ordinary course of business, that is material to the Fund and there has
not been any change in the capital stock or material increase in the
short-term debt or long-term debt of the Fund or any material, adverse
change or any development involving or which should reasonably be expected
to involve a prospective material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public any offering material in connection with
the offering and sale of the Shares other than the Registration Statement,
the Prepricing Prospectus included in Pre-Effective Amendment No. 1 to the
Registration Statement, the Prospectus and the advertisements/sales
literature filed by Nuveen Investments with the NASD on October 26, 2001.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
account for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
12
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Common Shares in violation of federal
securities laws and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed in
all material respects with all applicable provisions of the 1940 Act and
the Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Advisers for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were so
filed. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
13
7. Representations and Warranties of the Advisers. Each of the Investment
Adviser and the Subadviser, severally as to itself only and not jointly or as to
any other party, represents and warrants to each Underwriter that, as of the
date hereof or at such other time or times identified below:
(a) Such 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 the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing in
each jurisdiction or place where the nature of its properties or conduct of
its business requires such registration or qualification, except where the
failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Fund Agreements to which it is a party for the Fund
as contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement and the Fund Agreements to which it is a party; the execution and
delivery of, and the performance by such Adviser of its obligations under,
this Agreement and the Fund Agreements to which it is a party have been
duly and validly authorized by such Adviser; and this Agreement and the
Fund Agreements to which it is a party have been duly executed and
delivered by such Adviser and constitute the valid and legally binding
agreements of such Adviser, enforceable against such Adviser in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Fund Agreements to which it is a
party.
(e) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or
14
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of such Adviser, threatened against such Adviser or to which any
of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of such Adviser or that reasonably should have a material,
adverse effect on the ability of such Adviser to fulfill its obligations
hereunder or under the Fund Agreements to which it is a party.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of such Adviser, whether or not arising from the ordinary course
of business and (B) there have been no transactions entered into by such
Adviser which are material to such Adviser other than those in the ordinary
course of its business as described in the Prospectus.
(h) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; such Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of such Adviser under any such permit.
(i) This Agreement and each of the Management Agreement and the
Sub-Advisory Agreement to which such Adviser is a party comply in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this Agreement
or the Fund Agreements by such Adviser which is a party thereto, nor the
consummation by such Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other order of
or registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, the Certificate of Incorporation
or By-laws of such Adviser or (B) conflicts
15
or will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other instrument
to which such Adviser is a party or by which it or any of its properties
may be bound or materially violates or will materially violate any material
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to such Adviser or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of such Adviser pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to
which any of the property or assets of such Adviser is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), such Adviser has not taken and nor
will it take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common Shares
in violation of federal securities laws and such Adviser is not aware of
any such action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, such Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Advisers, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and
all losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person
16
asserting any loss, claim, damage, liability or expense purchased Shares,
if it is shown that a copy of the Prospectus, as then amended or
supplemented, which would have cured any defect giving rise to such loss,
claim, damage, liability or expense was not sent or delivered to such
person by or on behalf of such Underwriter, if required by law to be so
delivered, at or prior to the confirmation of the sale of such Shares to
such person and such Prospectus, amendments and supplements had been
provided by the Fund to the Underwriters in the requisite quantity and on a
timely basis to permit proper delivery. The foregoing indemnity agreement
shall be in addition to any liability which the Fund or the Advisers may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Advisers, such Underwriter
or such controlling person shall promptly notify the Fund or the Advisers
and the Fund or the Advisers shall assume the defense thereof, including
the employment of counsel and the payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i) the
Fund or the Advisers have agreed in writing to pay such fees and expenses,
(ii) the Fund and the Advisers have failed within a reasonable time to
assume the defense and employ counsel or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Fund or the
Advisers and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Advisers by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Advisers shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Fund and the Advisers shall,
in connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances
be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any action, suit or
proceeding in more than one jurisdiction) at any time for all such
Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be
designated in writing by Xxxxxxx Xxxxx Barney Inc. and that, subject to the
requirements of 1940 Act Release No. 11330, all such fees and expenses
shall be reimbursed promptly as they are incurred. The Fund and the
Advisers shall not be liable for any settlement of any such action, suit or
proceeding effected without the written consent of the Fund or the
Advisers, but if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Fund
and the Advisers agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding
17
paragraph, and any such controlling person from and against any loss,
liability, damage or expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Advisers, their trustees, directors, any
officers of the Fund who sign the Registration Statement and any person who
controls the Fund or the Advisers within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Advisers to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement or
to either of them). If any action, suit or proceeding shall be brought
against the Fund or the Advisers, any of their trustees, directors, any
such officer or any such controlling person, based on the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them) and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have the
rights and duties given to the Fund by paragraph (b) above (except that if
the Fund or the Advisers shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses
of such counsel shall be at such Underwriter's expense) and the Fund and
the Advisers, their trustees, directors, any such officer and any such
controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
(d) If the indemnification provided for in this section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Advisers on the one hand
(treated jointly for this purpose as one person) and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and
the Advisers on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Advisers
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Fund as set forth in the table on the cover page of the
Prospectus bear to the total payments received by the Underwriters with
respect to the Firm Shares as set forth in the table on the cover page of
the Prospectus. The relative fault of the Fund and the Advisers on the one
hand (treated jointly for this purpose as one person) and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Fund and
18
the Advisers on the one hand (treated jointly for this purpose as one
person) or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Fund, the Advisers and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 8 are several in proportion to the
respective number of Firm Shares set forth opposite their names in Schedule
I (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the Advisers set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the Advisers or their
trustees, directors or officers or any person controlling the Fund or the
Advisers, (ii) acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any Underwriter or
to the Fund, the Advisers or their trustees, directors or officers or any
19
person controlling any Underwriter, the Fund or the Advisers shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Advisers
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Advisers or any of their
officers in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Advisers or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) You shall have received on the Closing Date an opinion of Xxxx,
Xxxx & Xxxxx LLC, special counsel for the Fund and Investment Adviser,
dated the Closing Date and addressed to you, as Representatives of the
several Underwriters, to the effect that:
(i) The Fund is a business trust duly organized, validly existing
and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
(ii) The authorized and outstanding capital stock of the Fund is
as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion); and
the description of the authorized capital stock of the Fund contained
in the Prospectus (or any
20
amendment or supplement thereto through the date of the opinion) under
the caption "Description of Shares" conforms in all material respects
as to legal matters to the terms thereof contained in the Fund's
Declaration of Trust;
(iii) All the shares of capital stock of the Fund outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable, except that, as
described in the Prospectus under the heading, "Certain Provisions in
the Declaration of Trust," shareholders of the Fund may under certain
circumstances be held personally liable for its obligations;
(iv) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and not subject to any preemptive rights that entitle or
will entitle any person to acquire any Shares upon the issuance
thereof by the Fund, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(v) The form of certificates for the Shares is in due and proper
form and complies with the requirements of all applicable laws and the
AMEX;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization, execution and
delivery by the other parties thereto, constitute the valid, legal and
binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state securities laws
or principles of public policy and subject to the qualification that
the enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally
and by general equitable principles, whether enforcement is considered
in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Investment Adviser, enforceable against the
Investment Adviser in accordance with its terms, except as enforcement
of rights to indemnity hereunder may be limited by Federal or state
securities laws or principles of public policy and subject to the
qualification that the enforceability of the Investment Adviser's
obligations hereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at law;
21
(viii) The Fund Agreements comply in all material respects with
all applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of Trust or
By-Laws or to the best knowledge of such counsel after reasonable
inquiry, is not in material default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness, except as may be disclosed in
the Prospectus (and any amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend Reinvestment
Plan violates the Declaration of Trust or By-Laws of the Fund or any
material agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties is bound that
is an exhibit to the Registration Statement or that is known to such
counsel after reasonable inquiry or, to the best of such counsel's
knowledge after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such counsel's
knowledge after reasonable inquiry, will any such action result in any
violation of any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Fund or any of its properties,
except that, in the published opinion of the Commission, the
indemnification provisions in this Agreement and the Fund Agreements,
insofar as they relate to indemnification for liabilities arising
under the 1933 Act, are against public policy as expressed in the 1933
Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the
22
Registration Statement has been issued and no proceedings for that
purpose are pending before or contemplated by the Commission; and any
filing of the Prospectus and any amendments or supplements thereto
required pursuant to Rule 497 of the 1933 Act Rules and Regulations
prior to the date of such opinion have been made in accordance with
Rule 497;
(xiii) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, non-diversified management investment
company and all action has been taken by the Fund as required by the
1933 Act and the 1940 Act and the Rules and Regulations in connection
with the issuance and sale of the Shares to make the public offering
and consummate the sale of the Shares as contemplated by this
Agreement;
(xiv) The statements made in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them through
the date of the opinion) under the caption "Tax Matters" have been
reviewed by such counsel and to the extent they describe or summarize
tax laws, doctrines or practices of the United States, present a fair
and accurate description or summary thereof as of the date of the
opinion;
(xv) The statements in the Registration Statement and Prospectus
(and any amendment or supplement to either of them through the date of
the opinion), insofar as they are descriptions of contracts,
agreements or other legal documents or refer to statements of law or
legal conclusions, are accurate and present fairly the information
required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein as to which such
counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus
(or any amendment or supplement thereto through the date of the
opinion), there are no actions, suits or other legal or governmental
proceedings pending or expressly threatened against the Fund and (B)
there are no material agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them through the date of the opinion) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental
23
rule or regulation applicable to the Fund or of any decree of the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official having jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the AMEX and the Fund's registration
statement on Form 8-A under the 1934 Act is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States and may rely, as to matters involving
the application of laws of The Commonwealth of Massachusetts, to the extent
they deem proper and specified in such opinion, upon the opinion of Xxxxxxx
Xxxx LLP or other counsel of good standing whom they believe to be reliable
and who are satisfactory to the Representatives; provided that (X) such
reliance is expressly authorized by the opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is, in form
and substance, satisfactory to them and their counsel and (Y) Xxxx, Xxxx &
Xxxxx LLC states in its opinion that it believes that it and the
Underwriters are justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of Xxxxxxx
X. Xxxxxxxxx, Vice President, Assistant Secretary and General Counsel for
the Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Investment Adviser is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to
24
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 its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure so to register or to
qualify does not have a material, adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of the Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and authority to
enter into this Agreement, the Management Agreement and the
Sub-Advisory Agreement and this Agreement, the Management Agreement
and the Sub-Advisory Agreement have been duly authorized, executed and
delivered by the Investment Adviser and each of the Management
Agreement and the Sub-Advisory Agreement is a valid, legal and binding
agreement of the Investment Adviser, enforceable against the
Investment Adviser in accordance with its terms, except as enforcement
of rights to indemnity and contribution hereunder may be limited by
Federal or state securities laws or principles of public policy and
subject to the qualification that the enforceability of the Investment
Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory
Agreement complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act
Rules and Regulations and the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Investment Adviser
of this Agreement, the Management Agreement or the Sub-Advisory
Agreement nor the consummation by the Investment Adviser of the
transactions contemplated hereunder or thereunder constitutes or will
constitute a breach of or a default under the Certificate of
Incorporation or By-Laws of the Investment Adviser or any material
agreement, indenture, lease or other instrument to which the
Investment Adviser is a party or by which it or any of its properties
is bound that is known to such counsel after reasonable inquiry, or
will result in the creation or imposition of any material lien, charge
or encumbrance upon any property or assets of the Investment Adviser,
nor will any such action result in any violation of any existing
material law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or
25
decree known to such counsel after reasonable inquiry, applicable to
the Investment Adviser or any of its properties;
(vi) The description of the Investment Adviser and its business
in the Prospectus (and any amendment or supplement thereto) complies
in all material respects with all requirements of the 1933 Act, the
1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Investment Adviser or to which the Investment Adviser or
any of its property is subject which are required to be described in
the Registration Statement or Prospectus (or any amendment or
supplement to either of them);
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Investment Adviser to carry on its business as contemplated in the
Prospectus (and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Investment Adviser for the performance of this Agreement, the
Management Agreement or the Sub-Advisory Agreement by the Investment
Adviser or for the consummation by the Investment Adviser of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the Prospectus,
as of its date and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date or the
Option Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
26
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Investment Adviser as to laws of any
jurisdiction other than the United States, the State of Illinois and the
Delaware General Corporation Law statute, provided that (X) each such local
counsel is acceptable to the Representatives, (Y) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance
satisfactory to them and their counsel and (Z) counsel shall state in their
view that they believe that they and the Underwriters are justified in
relying thereon.
(d) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxx, Chief Compliance Officer for the Subadviser, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) The Subadviser is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the
failure so to register or to qualify does not have a material, adverse
effect on the condition (financial or other), business, properties,
net assets or results of operations of the Subadviser;
(ii) The Subadviser is duly registered with the Commission under
the Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the Rules and Regulations under such
acts from acting for the Fund under the Sub-Advisory Agreement as
contemplated by the Prospectus (and any amendment or supplement
thereto);
(iii) The Subadviser has corporate power and authority to enter
into this Agreement and the Sub-Advisory Agreement and this Agreement
and the Sub-Advisory Agreement have been duly authorized, executed and
delivered by the Subadviser and each of this Agreement and the
Sub-Advisory Agreement is a valid, legal and binding agreement of the
Subadviser, enforceable against the Subadviser in accordance with its
terms, except as enforcement of rights to indemnity and contribution
hereunder may be limited by Federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the Subadviser'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;
27
(iv) The Sub-Advisory Agreement complies in all material respects
with all applicable provisions of the Advisers Act, the 1940 Act and
the Advisers Act Rules and Regulations and the 1940 Act Rules and
Regulations;
(v) Neither the execution and delivery by the Subadviser of this
Agreement or the Sub-Advisory Agreement nor the consummation by the
Subadviser of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Incorporation or By-Laws of the Subadviser or any
material agreement, indenture, lease or other instrument to which the
Subadviser is a party or by which it or any of its properties is bound
that is known to such counsel after reasonable inquiry, or will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Subadviser, nor will
any such action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to the
Subadviser or any of its properties;
(vi) The description of the Subadviser and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Subadviser or to which the Subadviser or any of its
property is subject which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
to either of them);
(viii) The Subadviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Subadviser to carry on its business as contemplated in the Prospectus
(and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Subadviser for the performance of this Agreement or the
Sub-Advisory Agreement by the Subadviser or for the consummation by
the Subadviser of the transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration
28
Statement, such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and discussion
of the contents thereof and nothing has come to its attention that has
caused it to believe that the Registration Statement at the time it became
effective or the Prospectus, as of its date and as of the Closing Date or
the Option Closing Date, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as of the
Closing Date or the Option Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data included
in the Registration Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Subadviser as to laws of any jurisdiction
other than the United States, the State of Illinois and the Delaware
General Corporation Law statute, provided that (X) each such local counsel
is acceptable to the Representatives, (Y) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion
is delivered to the Representatives and is, in form and substance
satisfactory to them and their counsel and (Z) counsel shall state in their
view that they believe that they and the Underwriters are justified in
relying thereon.
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to such matters
as the Underwriters may require and the Fund, the Advisers and their
respective counsels shall have furnished to such counsel such documents as
they may request for the purpose of enabling them to pass upon such
matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and
the Closing Date from Xxxxxx Xxxxxxxx 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 the Registration Statement or prohibiting or suspending the
use of the Prospectus (or any amendment or supplement thereto) or any
Prepricing Prospectus or any sales material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an
enforcement action against the Fund, the Advisers or, with respect to the
transactions contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, any Underwriter, may be pending before or, to
the knowledge of the Fund, the Advisers or any Underwriter or in the
reasonable view of counsel to the
29
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, (i) there shall not have been any
change in the capital stock of the Fund nor any material increase in debt
of the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund shall not have sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto); (ii)
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
Advisers; (iii) the Fund and the Advisers must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any other
occurrence not described in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them); and (iv) all of the
representations and warranties of the Fund and the Advisers contained in
this Agreement shall be true and correct on and as of the date hereof and
as of the Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a prospective
change in or affecting the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or
the Advisers not contemplated by the Prospectus (and any amendment or
supplement thereto), which in your opinion, as Representatives of the
several Underwriters, would materially, adversely affect the market for the
Shares or (ii) any event or development relating to or involving the Fund,
the Advisers or any officer or trustee or director of the Fund or the
Advisers which makes any statement of a material fact made in the
Prospectus (or any amendment or supplement thereto) untrue or which, in the
opinion of the Fund and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the Prospectus (or any
amendment or supplement thereto) in order to state a material fact required
by the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
to be stated therein or necessary in order to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, if amending or supplementing the Prospectus
(or any amendment or supplement thereto) to reflect such event or
development would, in your opinion, as Representatives of the several
Underwriters, materially, adversely affect the market for the Shares.
(i) That neither the Fund nor the Advisers shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with
by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of the president or any vice president and of the
controller or treasurer of each of the Fund, the Investment Adviser and the
Subadviser 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
30
of the Fund (with respect to the certificates from such Fund officers) and
the representations of the Advisers (with respect to the certificates from
such officers of the Advisers) in this Agreement are true and correct on
and as of the date of the certificate as if made on such date, (iii) since
the date of the Prospectus (and any amendment or supplement thereto) there
has not been any material, adverse change in the condition (financial or
other), business, prospects (other than as a result of a change in the
financial markets generally), properties, net assets or results of
operations of the Fund (with respect to the certificates from such Fund
officers) or the Advisers (with respect to the certificates from such
officers of the Advisers), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Advisers (with respect to the
certificates from such officers of the Advisers) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
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 Advisers (with respect to
certificates from such officers of the Advisers) has performed and complied
with all agreements that this Agreement require it to perform by such
Closing Date, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Advisers (with respect to the
certificate from such officers of the Advisers) has sustained any material
loss or interference with its business from any court or from legislative
or other governmental action, order or decree or from any other occurrence
not described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) That the Fund and the Advisers shall have furnished to you such
further certificates, documents and opinions of counsel as you shall
reasonably request (including certificates of officers of the Fund and the
Advisers).
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by the
Fund or the Advisers to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and
31
warranties of the Fund and the Advisers 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 paragraphs (b), (c), (d), (e), (f), (j), (k) and this paragraph shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (b), (c), (d) and (e) 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 notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 20 of the
Xxxxxxx Xxxxx Barney Master Agreement Among Underwriters, to purchase Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Fund for the purchase of
such Firm Shares by one or more non-defaulting Underwriters or other party or
parties approved by you and the Fund are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect 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 Firm Shares which a
defaulting Underwriter agreed, but failed or refused, to purchase.
32
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 Advisers by notice to the Fund or the Advisers 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 the Shares or securities generally on the NYSE, the AMEX, Nasdaq
National Market or the Nasdaq Stock Market shall have been suspended or
materially limited, (ii) additional material governmental restrictions not in
force on the date of this Agreement have been imposed upon trading in securities
generally or a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or state authorities or (iii) any
outbreak or material escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
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
Advisers by telegram, telecopy or telephone but shall be subsequently confirmed
by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, 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 for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the 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 and
33
the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the NASD and incurred with respect to the
review of the offering of the Shares by the NASD, (i) the registration of the
Shares under the 1934 Act and the listing of the Shares on the AMEX, and (j) an
amount equal to (A) $20,000 plus (B) $0.0025 per Share for each Share in excess
of 2,000,000 sold pursuant to this Agreement, payable no later than 45 days from
the date of this Agreement to the Underwriters in partial reimbursement of their
expenses (but not including reimbursement for the cost of one tombstone
advertisement in a newspaper that is one-quarter of a newspaper page or less in
size) in connection with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Advisers will pay
the costs and expenses of the Fund set forth above in this Section 12 (a)
through (i), and reimbursements of Underwriter expenses in connection with the
offering shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the tenth paragraph, the first sentence of the twelfth paragraph and the
seventeenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Adviser, c/o
Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Berkshire, (b) if to the Subadviser, at the offices of Security Capital
Research & Management at 00 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxx Xxxxxx or (c) if to you, as Representatives of the
Underwriters, at the office of Xxxxxxx Xxxxx Barney Inc. at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Advisers, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of this Agreement are not
binding upon such officer, any of the trustees or the shareholders individually
but are binding only upon the assets and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
34
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.
35
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Advisers and the several Underwriters.
Very truly yours,
NUVEEN REAL ESTATE INCOME FUND
By: ___________________________
Title:
NUVEEN INSTITUTIONAL ADVISORY CORP.
By: _____________________________
Title:
SECURITY CAPITAL RESEARCH &
MANAGEMENT INCORPORATED
By: ___________________________
Title:
36
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: XXXXXXX XXXXX XXXXXX INC.
NUVEEN INVESTMENTS
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXX XXXXXXXX INCORPORATED
FIRST UNION SECURITIES, INC.
GRUNTAL & CO., L.L.C.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
MCDONALD INVESTMENTS INC., A KEYCORP COMPANY
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX XXXXXX INC.
By: ___________________________________
Title: Director
37
SCHEDULE I
Number of
Name of Underwriter Common Shares
------------------- -------------
Xxxxxxx Xxxxx Barney Inc .........................................
Nuveen Investments ...............................................
X.X. Xxxxxxx & Sons, Inc. ........................................
Prudential Securities Incorporated ...............................
Xxxx Xxxxxxxx Incorporated .......................................
First Union Securities, Inc. .....................................
Gruntal & Co., L.L.C. ............................................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated .............................
McDonald Investments Inc., a KeyCorp Company .....................
--------------
Total Underwriters (9) ...........................................
