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EXHIBIT h
NUVEEN SENIOR INCOME FUND
1,840 TAXABLE AUCTIONED PREFERRED SHARES
UNDERWRITING AGREEMENT
May , 2000
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nuveen Senior Income Fund, a Massachusetts business trust (the "Fund"),
proposes to issue and sell to the underwriters named in Schedule 1 hereto (the
"Underwriters") an aggregate of 1,840 preferred shares of beneficial interest,
par value $0.01 per share, designated Taxable Auctioned Preferred Shares, Series
of the Fund, each with a liquidation preference of $25,000 per share
(collectively, the "TAPS").
Nuveen Senior Loan Asset Management Inc., a Delaware corporation (the
"Investment Adviser") and a wholly-owned subsidiary of The Xxxx Nuveen Company,
is the Fund's investment adviser pursuant to an Investment Management Agreement
by and between the Fund and the Investment Adviser, dated as of October 19, 1999
(the "Investment Management Agreement"). In addition, the Fund and the
Investment Adviser have entered into an Expense Reimbursement Agreement, dated
as of October 19, 1999 (the "Expense Reimbursement Agreement") and a
Subscription Agreement dated as of October 12, 1999 (the "Subscription
Agreement"). Chase Bank of Texas, National Association acts as the custodian
(the "Custodian") of the Fund's cash and portfolio assets pursuant to a Custody
Agreement between the Fund and the Custodian, effective as of October 26, 1999
(the "Custody Agreement"). The Chase Manhattan Bank will act as the Fund's
transfer agent and dividend disbursing agent (the "Transfer Agent") pursuant to
a transfer agency agreement between the Fund and the Transfer Agent, dated as of
October 26, 1999 (the "Transfer Agency Agreement"). The Investment Adviser has
entered into a letter agreement relating to pricing services (the "Pricing
Services Agreement") dated as of October 26, 1999 with DLJ Capital Funding, Inc.
Deutsche Bank Group will act as the Trust's auction agent (the "Auction Agent")
pursuant to an Auction Agency Agreement, dated as of May , 2000 (the "Auction
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Agency Agreement"). The Fund has entered into a Letter Agreement, dated as of
May , 2000 with the Depository Trust Company (the "DTC Agreement").
The Fund and the Investment Adviser each hereby confirms as follows their
agreements with the Underwriters.
1. Sale and Purchase; Compensation
(a) The Fund will issue and sell to each Underwriter, and each
Underwriter will purchase from the Fund, the number of TAPS set forth opposite
such Underwriter's name in Schedule 1 hereto, at the purchase price of $24,750
per share.
(b) The obligations of the Underwriters under this Underwriting
Agreement are several and not joint and are undertaken on the basis of the
representations and are subject to the conditions set forth in this
Underwriting Agreement.
2. Payment and Delivery. Delivery by the Fund of the TAPS to the
Underwriters against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to the Fund for the TAPS, will take place at the
offices of Vedder, price, Xxxxxxx & Kammholz, 000 X. XxXxxxx Xx., Xxxxxxx,
Xxxxxxxx, or such other location as is agreed upon by the parties hereto, or
through the facilities of the Depository Trust Company or another mutually
agreeable facility, at 9:00 a.m., central standard time, on the third business
day following the date of this Underwriting Agreement, or at such time on such
other date, not later than ten business days after the date of this Underwriting
Agreement, as may be agreed upon by the Fund and the PaineWebber Incorporated
(the "Managing Representative") (the "TAPS Closing Date").
A certificate evidencing each series of TAPS in definitive form and
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), shall be delivered by or on behalf of the Fund to DTC for the account
of the Underwriters.
3. Registration Statement and Prospectus; Public Offering. The Fund has
filed with the Securities and Exchange Commission (the "Commission"), pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
published rules and regulations adopted by the Commission under the Securities
Act (the "Securities Act Rules") and the Investment Company Act (the "Investment
Company Act Rules"), a Notification of Registration on Form N-8A (the
"Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2
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(File Nos. 333- and 811-09571) relating to the TAPS (the "registration
statement"), including a preliminary prospectus (including any preliminary
statement of additional information), and such amendments to such registration
statement as may have been required to the date of this Underwriting Agreement.
The preliminary prospectus (including any preliminary statement of additional
information) is to be used in connection with the offering and sale of the TAPS.
The term "Preliminary Prospectus" as used herein means any preliminary
prospectus (including any preliminary statement of additional information)
included at any time as a part of the registration statement and any
advertisement or sales material deemed to be a prospectus under Section 10(b) of
the Securities Act pursuant to Rule 482 of the Securities Act Rules.
The Fund has furnished the Managing Representative copies of such
registration statement, each amendment to such registration statement filed by
the Fund with the Commission and the Preliminary Prospectus filed by the Fund
with the Commission or used by the Fund. If the registration statement has not
become effective, a further amendment (the "Final Amendment") to such
registration statement, including the forms of final prospectus (including any
final statement of additional information), necessary to permit such
registration statement to become effective will promptly be filed by the Fund
with the Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the Securities Act Rules, a final prospectus (the "Rule 430A Prospectus")
containing such omitted information will be filed by the Fund with the
Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Fund and the Investment Adviser understand that the Underwriters
propose to make a public offering of the TAPS, as described in the Prospectus,
as soon after the Effective Date (or, if later, after the date this Underwriting
Agreement is signed) as the Managing Representative deems advisable. The Fund
confirms that the Underwriters and dealers have been authorized to distribute
the Preliminary Prospectus relating to the TAPS included in Pre-Effective
Amendment No. 1 of the registration statement and are authorized to distribute
the Prospectus and any amendments or supplements thereto.
4. Representations.
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(a) Each of the Fund and the Investment Adviser jointly and severally
represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date on which the
Prospectus is first filed with the Commission pursuant to Rule 497(b), (h) or
(j) of the Securities Act Rules, as the case may be and (B) the date on which
any post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after the later of
(x) one year from the date of this Under writing Agreement or (y) the date on
which the distribution of the TAPS is completed) became or becomes effective
or any amendment or supplement to the Prospectus was or is filed with the
Commission, the Registration Statement, the Prospectus and any such amendment
or supplement thereto and the Notification complied or will comply in all
material respects with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules, as
the case may be. On the Effective Date and on the date that any post-effective
amendment to the Registration Statement (except any post-effective amendment
which is filed with the Commission after the later of (x) one year from the
date of this Underwriting Agreement or (y) the date on which the distribution
of the TAPS is completed) became or becomes effective, neither the
Registration Statement nor any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in it or necessary to make the statements in it not misleading. At the
Effective Date and, if applicable, the date the Prospectus or any amendment or
supplement to the Prospectus was or is filed with the Commission and at the
TAPS Closing Date, the Prospectus did not or will not, as the case may be,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated in it or necessary to make the statements in it, in
light of the circumstances under which they were made, not misleading. The
foregoing representations in this Section 4(a)(i) do not apply to statements
or omissions relating to the Underwriters made in reliance on and in
conformity with information furnished in writing to the Fund by the
Underwriters expressly for use in the Registration Statement, the Prospectus,
or any amendments or supplements thereto, as described in Section 7(f) hereof.
(ii) The Fund has been duly formed, is validly existing as a
voluntary association with transferable shares of beneficial interest commonly
referred to as a "Massachusetts business trust" under
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the laws of The Commonwealth of Massachusetts; the Declaration of Trust of
the Fund, as amended through the date hereof (the "Declaration of Trust")
and the Statement Establishing and Fixing the Rights and Preferences of
Taxable Auctioned Preferred Shares (the "Statement") confer upon the Fund
full power and authority to conduct all the activities conducted by it, to
own or lease all assets owned or leased by it and to conduct its business
as described in the Registration Statement and Prospectus, and the Fund is
duly licensed and qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or its
conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or has obtained
and currently maintains all material governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Prospectus. The Fund has no subsidiaries.
(iii) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The common shares of beneficial
interest of the Fund, par value $0.01 per share (the "Common Shares"), and
the TAPS conform in all material respects to the description of them in the
Prospectus. All the outstanding Common Shares have been duly authorized and
are validly issued, fully paid and nonassessable (except that shareholders
of a Massachusetts business trust may in certain circumstances be held
personally liable for its obligations). The TAPS to be issued and delivered
to and paid for by the Underwriters in accordance with this Underwriting
Agreement against payment therefor as provided by this Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully paid and
nonassessable (except that shareholders of a Massachusetts business trust
may in certain circumstances be held personally liable for its
obligations). No person is entitled to any preemptive or other similar
rights in connection with the issuance of the TAPS.
(iv) The Fund is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management
investment company, and, subject to the filing of the Final Amendment, if
not already filed, all action under the Securities Act, the Investment
Company Act, the Securities Act Rules
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and the Investment Company Act Rules, as the case may be, necessary to make
the public offering and consummate the sale of the TAPS as provided in this
Underwriting Agreement has or will have been taken by the Fund.
(v) The Fund has full power and authority to enter into each
of this Underwriting Agreement, the Investment Management Agreement, the
Custody Agreement, the Transfer Agency Agreement, the Expense Reimbursement
Agreement, the Subscription Agreement, the Auction Agency Agreement and the
DTC Agreement (collectively, the "Fund Agreements") and to perform all of
the terms and provisions hereof and thereof to be carried out by it and (A)
each Fund Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Fund, (B) each Fund Agreement does not
violate in any material respect any of the applicable provisions of the
Investment Company Act, the Investment Advisers Act of 1940 (the "Advisers
Act"), the Investment Company Act Rules and the rules and regulations
adopted by the Commission under the Advisers Act (the "Advisers Act
Rules"), as the case may be, and (C) assuming due authorization, execution
and delivery by the other parties thereto, each Fund Agreement constitutes
the legal, valid and binding obligation of the Fund enforceable in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general equitable principles (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (2) with
respect to this Underwriting Agreement, except as rights to indemnity
hereunder may be limited by federal or state securities laws.
(vi) None of (A) the execution and delivery by the Fund of the
Fund Agreements, (B) the issue and sale by the Fund of the TAPS as
contemplated by this Underwriting Agreement and (C) the performance by the
Fund of its obligations under any of the Fund Agreements or consummation by
the Fund of the other transactions contemplated by the Fund Agreements
conflicts or will conflict with, or results or will result in a breach of,
the Declaration of Trust, the By-laws or the Statement of the Fund or a
material breach of any material agreement or instrument to which the Fund
is a party or by which the Fund is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the
Fund (which breach, either individually or in the aggregate, would have a
material
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adverse effect on the Fund), other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of the TAPS by
the Underwriters pursuant to this Underwriting Agreement.
(vii) The Fund is not currently in material breach of, or in
material default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected.
(viii) No person has any right to the registration of any
securities of the Fund because of the filing of the registration statement.
(ix) No consent, approval, authorization or order of any court
or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation
by the Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be performed by
or on behalf of it in each case as contemplated in the Fund Agreements,
except such as (A) the absence of which, either individually or in the
aggregate, would not have a material adverse effect on the Fund (B) have
been obtained under the Securities Act, the Securites Exchange Act of 1934,
as amended (the "Exchange Act"), the Investment Company Act, the Advisers
Act, the Securities Act Rules, the published rules and regulations adopted
by the Commission under the Exchange Act (the "Exchange Act Rules"), the
Investment Company Act Rules, and the Advisers Act Rules, and (C) may be
required by the New York Stock Exchange or under state securities or "blue
sky" laws, in connection with the purchase and distribution of the TAPS by
the Underwriters pursuant to this Underwriting Agreement.
(x) KPMG LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules.
(xi) The financial statements included in the Registration
Statement and the Prospectus present fairly in all material respects, in
accordance with generally accepted accounting principles in the United
States applied on a consistent basis (except as otherwise
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noted in any footnotes thereto), the financial position of the Fund as of
the dates and for the periods indicated.
(xii) The Fund will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets through an asset reconciliation procedure or
otherwise at reasonable intervals and appropriate action is taken with
respect to any differences.
(xiii) Other than as set forth in the Prospectus, subsequent
to the date of the unaudited financial statements in the Registration
Statement and Prospectus up to the TAPS Closing Date, (A) the Fund has not
incurred any liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), or entered into any transactions,
not in the ordinary course of business, that are material to the Fund, (B)
there has not been any material change in the Common Shares or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Fund, that
might materially and adversely affect the property or assets thereof, (C)
there has been no dividend or distribution paid or declared in respect of
any class of the Fund's shares of beneficial interest other than regularly
scheduled dividends and distributions as disclosed in the prospectus
relating to the common shares of the Fund, and (D) the Fund has not
incurred any material debt or issued any senior security;
(xiv) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to the
knowledge of the Fund, threatened against or affecting the Fund, which (A)
could reasonably be expected to result in any material adverse change in
the condition, financial or otherwise or business affairs of the Fund or
could reasonably be expected to materially adversely affect the properties
or assets of the Fund or (B) is of a
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character required to be described in the Registration Statement or the
Prospectus and is not so described as required; and there are no contracts,
franchises or other documents that are of a character required to be
described in, or that are required to be filed as exhibits to, the
Registration Statement that have not been described or filed as required.
(xv) The Fund intends to direct the investment of the proceeds
of the offering of the TAPS in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code").
(xvi) The Common Shares are listed on the New York Stock
Exchange.
(xvii) The TAPS have been, or prior to the TAPS Closing Date
will be, assigned a rating of "aaa" by Xxxxx'x Investors Services, Inc.
("Moody's).
(xviii) All advertisements and other sales literature
(collectively, "sales materials") authorized in writing or prepared by the
Fund for use in connection with the public offering of the TAPS complied
and comply with the requirements of the Securities Act, the Securities Act
Rules and the rules and interpretations of the National Association of
Securities Dealers, Inc. ("NASD") and no such sales materials contained or
contain any untrue statement of a material fact or omitted or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading in light of the circumstances in
which they were made, including the Securities Act and the Securities Act
Rules.
(b) The Investment Adviser represents to each Underwriter as follows:
(i) The Investment Adviser has been duly formed, is validly
existing as a corporation under the laws of Delaware with full power and
authority to conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus, and the Investment
Adviser is duly licensed and qualified to do business and in good standing
in each jurisdiction in which it is required to be so qualified, except to
the extent that failure to be so qualified or be in good
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standing would not have a material adverse affect on the Investment
Adviser; and the Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic, necessary
to carry on its business as contemplated in the Registration Statement and
the Prospectus except those the absence of which, either individually or in
the aggregate, would not have a material adverse effect on the Investment
Adviser.
(ii) The Investment Adviser is (A) duly registered as an
investment adviser under the Advisers Act and (B) not prohibited by the
Advisers Act, the Investment Company Act, the Advisers Act Rules or the
Investment Company Act Rules from acting as the investment adviser for the
Fund as contemplated by the Investment Advisory Agreement, the Registration
Statement and the Prospectus.
(iii) The Investment Adviser has full power and authority to
enter into each of this Underwriting Agreement, the Investment Management
Agreement, the Expense Reimbursement Agreement, the Subscription Agreement
and the Pricing Services Agreement (together, such agreements being
referred to as the "Investment Adviser Agreements") and to carry out all
the terms and provisions hereof and thereof to be carried out by it; and
each Investment Adviser Agreement has been duly and validly authorized,
executed and delivered by the Investment Adviser; none of the Investment
Adviser Agreements violate in any material respect any of the applicable
provisions of the Investment Company Act, the Advisers Act, the Investment
Company Act Rules and the Advisers Act Rules; and assuming due
authorization, execution and delivery by the other parties thereto, each
Investment Adviser Agreement constitutes a legal, valid and binding
obligation of the Investment Adviser, enforceable in accordance with its
terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) with respect to this Under writing
Agreement, except as rights to indemnity hereunder may be limited by
federal or state securities laws.
(iv) Neither (A) the execution and delivery by the Investment
Adviser of any Investment Adviser Agreement by the Investment Adviser nor
(B) the consummation by the Investment
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Adviser of the transactions contemplated by, or the performance of its
obligations under any Investment Adviser Agreement conflicts or will
conflict with, or results or will result in a breach of, the Certificate of
Incorporation or By-Laws of the Investment Adviser or any material
agreement or instrument to which the Investment Adviser is a party or by
which the Investment Adviser is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the
Investment Adviser which conflict or breach, either individually or in the
aggregate, would have a material adverse effect on the Investment Adviser.
(v) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Investment Adviser of its
obligations under, any Investment Adviser Agreement, as the case may be,
except such as (A) have been obtained under the Investment Company Act, the
Advisers Act, the Securities Act, the Investment Company Act Rules, the
Advisers Act Rules and the Securities Act Rules, and (B) may be required
under state securities or "blue sky" laws, in connection with the purchase
and distribution of the TAPS by the Underwriters pursuant to this
Underwriting Agreement.
(vi) The description of the Investment Adviser and its
business, and the statements attributed to the Investment Adviser, in the
Registration Statement and the Prospectus comply in all material respects
with the requirements of the Securities Act, the Investment Company Act,
the Securities Act Rules and the Investment Company Act Rules and, with
respect to the Prospectus, do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(vii) Except as set forth in the Registration Statement and
Prospectus, there is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to the knowledge of
the Investment Adviser, threatened, against or affecting the Investment
Adviser of a nature required to be disclosed in the Registration Statement
or Prospectus or that could reasonably be
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expected to result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of the
Investment Adviser or the ability of the Investment Adviser to fulfill its
respective obligations under any Investment Adviser Agreement.
(viii) In the event that the Fund or the Investment Adviser
makes available any sales materials or other promotional materials in
connection with the public sale of the TAPS intended for use only by
qualified broker-dealers and registered representatives thereof by means of
an Internet web site or similar electronic means, the Investment Adviser
will install and maintain pre-qualification and password-protection or
similar procedures which are designed and reasonably expected to
effectively prohibit access to such promotional materials by persons other
than qualified broker-dealers and registered representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the TAPS
has not yet become effective, the Fund will promptly file the Final Amendment,
if not previously filed, with the Commission, and will use its commercially
reasonable best efforts to cause such registration statement to become effective
and, as soon as the Fund is advised, will advise the Managing Representative
when the Registration Statement or any amendment thereto has become effective.
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 Securities Act Rules, the Fund will file a 430A Prospectus pursuant
to Rule 497(h) of the Securities Act Rules as promptly as practicable, but no
later than the second business day following the earlier of the date of the
determination of the offering price of the TAPS or the date the Prospectus is
first used after the Effective Date. 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(b) or (j) of
the Securities Act Rules as promptly as practicable, but no later than the fifth
business day following the date of the later of the Effective Date or the
commencement of the public offering of the TAPS after the Effective Date. In
either case, the Fund will provide the Managing Representative satisfactory
evidence of the filing. The Fund will not file with the Commission any
Prospectus or any other amendment (except any post-effective amendment which is
filed with the Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which distribution of the TAPS is
completed) or supplement to the Registration Statement or the Prospectus unless
a copy has first been submitted to the Managing Representative a reasonable time
before its filing and the
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Managing Representative has not objected to it in writing within a
reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the
Fund will advise the Managing Representative promptly (1) of the issuance
by the Commission of any order in respect of the Fund or the Investment
Adviser which relates to the Fund, or which relates to any material
arrangements or proposed material arrangements involving the Fund or the
Investment Adviser, (2) of the initiation or threatening in writing of any
proceedings for, or receipt by the Fund of any written notice with respect
to, the suspension of the qualification of the TAPS for sale in any
jurisdiction or the issuance of any order by the Commission suspending the
effectiveness of the Registration Statement, (3) of receipt by the Fund, or
any representative or attorney of the Fund, of any other communication from
the Commission relating in any material way to the Fund, the Registration
Statement, the Notification, any Preliminary Prospectus, the Prospectus or
to the transactions contemplated by this Underwriting Agreement and (4) the
issuance by any court, regulatory body, administrative agency or other
governmental agency or body, whether foreign or domestic, of any order,
ruling or decree, or the threat in writing to initiate any proceedings with
respect thereto, regarding the Fund, which relates in any material way to
the Fund or any material arrangements or proposed material arrangements
involving the Fund. The Fund will make every reasonable effort to prevent
the issuance of any order suspending the effectiveness of the Registration
Statement and, if any such order is issued, to obtain its lifting as soon
as practicable.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Managing Representative, without
charge, a signed copy of the registration statement and the Notification
and of any amendments (except any post-effective amendment which is filed
with the Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of the
TAPS is completed) to either the Registration Statement or the Notification
(including all exhibits filed with any such document) and as many conformed
copies of the registration statement and any amendments thereto (except any
post-effective amendment which is filed with the Commission after the later
of (x) one year from the date of this Underwriting Agreement or (y) the
date on which the distribution of the TAPS is completed) (excluding
exhibits) as the Managing Representative may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an underwriter or a dealer, the Fund will deliver, without
charge, to the Underwriters and any dealers, at such office or offices as
the Underwriters may designate, as many copies of the Prospectus as the
Underwriters may reasonably request,
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and, if any event occurs during such period as a result of which it is
necessary to amend or supplement the Prospectus, in order to make the
statements therein, in light of the circumstances existing when such
Prospectus is delivered to a purchaser of TAPS, not misleading in any
material respect, or if during such period it is necessary to amend or
supplement the Prospectus to comply with the Securities Act, the Investment
Company Act, the Securities Act Rules or the Investment Company Act Rules,
the Fund promptly will prepare, submit to the Managing Representative, file
with the Commission and deliver, without charge, to the Underwriters and to
dealers (whose names and addresses the Managing Representative will furnish
to the Fund) to whom TAPS may have been sold by the Underwriters, and to
other dealers on request, amendments or supplements to the Prospectus so
that the statements in such Prospectus, as so amended or supplemented, will
not, in light of the circumstances existing when such Prospectus is
delivered to a purchaser, be misleading in any material respect and will
comply with the Securities Act, the Investment Company Act, the Securities
Act Rules and the Investment Company Act Rules. Delivery by the
Underwriters of any such amendments or supplements to the Prospectus will
not constitute a waiver of any of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event later than the
last day of the 18th full calendar month following the calendar quarter in
which the Effective Date falls, an earnings statement, if applicable,
satisfying the provisions of Section 11(a) of the Securities Act and, at
the option of the Fund, Rule 158 of the Securities Act Rules.
(f) The Fund will take such actions as the Managing Representa
tive reasonably requests in order to qualify the TAPS for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Managing Representative reasonably designates; provided that the Fund shall
not be required in connection therewith or as a condition thereof to
qualify as a foreign corporation or to execute a general consent to service
of process in any jurisdiction.
(g) The Fund will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Fund's counsel and accountants
in connection with the registration of the TAPS and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or reproducing this
Underwriting Agreement and any other documents in connection with the
offering, purchase, sale and delivery of the TAPS (including advertising
expenses of the Underwriters, if any); (iii) the cost of preparing share
certificates; (iv) the expenses (including, but not limited to, travel,
hotels and other accommodations)
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15
incurred by the Fund's or the Investment Adviser's directors, officers,
employees and other personnel in connection with meetings held with
registered brokers in connection with the offering of the TAPS, the
preparing to market and the marketing of the TAPS; (v) any fees charged by
securities rating services for rating the TAPS; (vi) the fees and expenses
of DTC and its nominee, the Custodian and the Auction Agent; and (vii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for. It is
understood, however, that, except as provided in this Section 5 and in
Section 7 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel and stock transfer taxes, if
any, on resale of any of the TAPS by them, except any advertising expenses
connected with any offers they may make.
(h) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided herein, no
party will be under any liability to any other party, except that (1) if
this Underwriting Agreement is terminated by (x) the Fund or the Investment
Adviser pursuant to any of the provisions hereof (otherwise than pursuant
to Section 8 hereof) or (y) the Underwriters because of any inability,
failure or refusal on the part of the Fund or the Investment Adviser to
comply with any material terms or because any of the conditions in Section
6 are not satisfied, the Investment Adviser and the Fund, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the proposed
purchase and sale of the TAPS (provided, however, that the Fund and the
Investment Adviser shall not be liable for any loss of anticipated profits
or speculative or consequential or similar damages for such termination)
and (2) no Underwriter who has failed or refused to purchase the TAPS
agreed to be purchased by it under this Underwriting Agreement, in breach
of its obligations pursuant to this Underwriting Agreement, will be
relieved of liability to the Fund and the Investment Adviser and the other
Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing Represen
tative, the Fund will not offer, sell or register with the Commission, or
announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the TAPS as described in the
Prospectus and any issuances of Common Shares pursuant to the dividend
reinvestment plan established by the Fund.
(j) The Fund will direct the investment of the net proceeds of
the offering of the TAPS in such a manner as to comply with the investment
objective and policies of the Fund as described in the Prospectus.
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16
(j) No later than the TAPS Closing Date, the Underwriters will
provide, and will cause any selling group member to whom they have sold
TAPS to provide, the Auction Agent with a list of the record names of the
persons to whom they have sold TAPS, the number of TAPS sold to each such
person, and the number of TAPS they are holding as of the TAPS Closing
Date; provided that in lieu of thereof, an Underwriter may provide the
Auction Agent with a list indicating itself as the sole holder of all the
TAPS sold by such Underwriter.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase the TAPS are subject to the
accuracy on the date of this Underwriting Agreement, and on the TAPS
Closing Date, of the representations of the Fund and the Investment Adviser
in this Underwriting Agreement, to the accuracy and completeness of all
statements made by the Fund or the Investment Adviser or any of their
respective officers in any certificate delivered to the Managing
Representative or its counsel pursuant to this Underwriting Agreement, to
performance by the Fund and the Investment Adviser of their respective
obligations under this Underwriting Agreement and to each of the following
additional conditions:
(a) The registration statement must have become
effective by 5:30 p.m., New York City time, on the date of this
Underwriting Agreement or such later date and time as the Managing
Representative consents to in writing. The Prospectus must have been filed
in accordance with Rule 497(b), (h) or (j), as the case may be, of the
Securities Act Rules.
(b) No order suspending the effectiveness of the
Registration Statement may be in effect and no proceedings for such purpose
may be pending before or, to the knowledge of counsel to the Underwriters,
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) must be complied with or waived to the
reasonable satisfaction of the Managing Representative.
(c) Since the dates as of which information is given in
the Registration Statement and the Prospectus, (1) there must not have been
any material change in the Common Shares, the TAPS or the liabilities of
the Fund except as set forth in or contemplated by the Prospectus; (2)
there must not have been any material adverse change in the general
affairs, prospects, management, business, financial condition or results of
operations of the Fund or the Investment Adviser whether or not arising
from transactions in the ordinary course of business as set forth in or
contemplated by the Prospectus (other than, in the case of the Fund, as a
result of changes in the markets for senior secured corporate loans
generally); (3) the Fund must not have sustained any material loss or
interference with its business from any court or from legislative or other
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17
governmental action, order or decree, whether foreign or domestic, or from
any other occurrence not described in the Registration Statement and
Prospectus; and (4) there must not have occurred any event that makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or that is not
reflected in the Registration Statement or Prospectus but should be
reflected therein in order to make the statements or information therein
(in the case of the Prospectus, in light of the circumstances in which they
were made) not misleading in any material respect; if, in the judgment of
the Managing Representative, any such development referred to in clause
(1), (2), (3) or (4) of this paragraph (c) makes it impracticable or
inadvisable to consummate the sale and delivery of the TAPS pursuant to
this Underwriting Agreement by the Underwriters, at the initial public
offering price of the TAPS.
(d) The Managing Representative must have received on the TAPS
Closing Date a certificate, dated such date, of the President or a
Vice-President and the chief financial or accounting officer or controller
or treasurer of each of the Fund and the Investment Adviser certifying that
(1) the signers have carefully examined the Registration Statement, the
Prospectus, and this Underwriting Agreement, (2) the representations of the
Fund (with respect to the certificates from such Fund officers) and the
representations of the Investment Adviser (with respect to the certificates
from such officers of the Investment Adviser) in this Underwriting
Agreement are accurate on and as of the date of the certificate, (3) there
has not been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the
Fund (with respect to the certificates from such Fund officers) or the
Investment Adviser (with respect to the certificates from such officers of
the Investment Adviser), which change would materially and adversely affect
the ability of the Fund or the Investment Adviser, as the case may be, to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory Agreement, whether or not arising from transactions in the
ordinary course of business (other than, with respect to the certificates
from such Fund officers, as a result of changes in the markets for senior
secured corporate loans generally), (4) with respect to the Fund only, to
the knowledge of such officers, no order suspending the effectiveness of
the Registration Statement, prohibiting the sale of any of the TAPS or
otherwise having a material adverse effect on the Fund has been issued and
no proceedings for any such purpose are pending before or threatened by the
Commission or any other regulatory body, whether foreign or domestic, (5)
to the knowledge of the officers of the Investment Adviser, after
reasonable investigation, no order having a material adverse effect on the
ability of the Investment Adviser to fulfill its obligations under this
Underwriting Agreement or the Investment Advisory Agreement, as the case
may be, has been issued and no proceedings for any such purpose are pending
before or threatened by the Commission or any other regulatory body,
whether foreign or domestic, and (6) each of the Fund
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(with respect to the certificates from such Fund officers) and the
Investment Adviser (with respect to the certificates from such officers of
the Investment Adviser) has performed all of its respective agreements that
this Underwriting Agreement requires it to perform by the TAPS Closing Date
(to the extent not waived in writing by the Managing Representative).
(e) The Underwriters must receive on the TAPS Closing Date the
opinions dated such date substantially in the form of Annexes A and B to
this Underwriting Agreement from the counsel identified in each such
Annex.
(f) The Underwriters must receive on the TAPS Closing Date
from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its affiliated entities,
their counsel, an opinion dated such date with respect to the Fund, the
TAPS, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in
connection with the sale and delivery of the TAPS. Such opinion and
proceedings shall fulfill the requirements of this Section 6(f) only if
such opinion and proceedings are satisfactory in all respects to the
Managing Representative. The Fund and the Investment Adviser must have
furnished to such counsel such documents as counsel may reasonably request
for the purpose of enabling them to render such opinion.
(g) The Underwriters must receive on the date this
Underwriting Agreement is signed and delivered by the Underwriters a signed
letter, dated such date, substantially in the form of Annex C to this
Underwriting Agreement from the firm of accountants designated in such
Annex. The Underwriters also must receive on the TAPS Closing Date a signed
letter from such accountants, dated as of such date, confirming on the
basis of a review in accordance with the procedures set forth in their
earlier letter that nothing has come to their attention during the period
from a date not more than five business days before the date of this
Underwriting Agreement, specified in the letter, to a date not more than
five business days before such date, that would require any change in their
letter referred to in the foregoing sentence.
(h) The TAPS shall have been accorded a rating of "aaa" by
Xxxxx'x and a letter to such effect, dated the TAPS Closing Date, shall
have been delivered to the Managing Representative.
(i) As of the TAPS Closing Date and assuming the receipt of
the net proceeds from the sale of the TAPS, the 1940 Act TAPS Asset
Coverage and the TAPS Basic Maintenance Amount (each as defined in the
Prospectus) each will be met.
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All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Underwriting Agreement will comply only if they
are in form and scope reasonably satisfactory to counsel for the
Underwriters, provided that any such documents, forms of which are annexed
hereto, shall be deemed satisfactory to such counsel if substantially in
such form.
7. Indemnification and Contribution.
(a) Each of the Fund and the Investment Adviser, jointly and
severally, will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of such Underwriter and each
person, if any, who controls such Underwriter within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act from and
against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts
paid in settlement (in compliance herewith) of, any action, suit or
proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise,
or any claim asserted), to which such Underwriter or any such person, or
any of them, may become subject under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act or other federal or state
statutory law or regulation, at common law or otherwise, whether foreign or
domestic, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus, the sales materials, or any
amendment or supplement to the Registration Statement, the Preliminary
Prospectus, the Prospectus, the sales materials or in any documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Registration Statement, the Preliminary Prospectus, the Prospectus, or in
any application or other document executed by or on behalf of the Fund or
based on written information furnished by or on behalf of the Fund filed in
any jurisdiction in order to qualify the TAPS under the securities laws
thereof or filed with the Commission, (ii) the omission or alleged omission
to state, in any or all such documents, a material fact required to be
stated therein or necessary to make the statements therein not misleading
or (iii) any act or failure to act or any alleged act or failure to act by
such Underwriter in connection with, or relating in any manner to, the TAPS
or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage arising out of
or based upon matters covered by clause (i) or (ii) above (provided,
however, that neither of the Fund nor the Investment Adviser shall be
liable under this clause (iii) to the extent it is finally judicially
determined by a court of competent jurisdiction that such loss, claim,
liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such indemnified party
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20
through its gross negligence, bad faith or willful misconduct); provided
that neither the Fund nor the Investment Adviser will be liable to the
extent that such losses, claims, liabilities, expenses or damages arise
from the sale of the TAPS in the public offering to any person by an
underwriter, including an Underwriter, pursuant to this Agreement and are
based on an untrue statement or omission or alleged untrue statement or
omission (1) made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Fund by the
Managing Representative on behalf of Underwriters expressly for inclusion
in the Registration Statement, the Preliminary Prospectus or the Prospectus
or (2) if a copy of the Prospectus was not sent or given to such person at
or before the confirmation of the sale to such person in any case where
such delivery is required by the Securities Act, unless such failure to
deliver such Prospectus was a result of noncompliance by the Fund with
Section 5(d) hereof or (3) made in any preliminary prospectus which untrue
statement or omission or alleged untrue statement or omission was corrected
in all material respects in the Prospectus (as then amended or
supplemented) if the Fund and/or the Investment Adviser, as the case may
be, shall sustain the burden of proving that the Underwriters sold TAPS to
the person alleging such loss, claim, liability, expense or damage without
sending or giving, at or prior to the written confirmation of such sale, a
copy of the Prospectus (as then amended or supplemented) if the Fund had
previously furnished copies thereof to the Underwriters in accordance with
this Agreement, and the Underwriters failed to deliver the corrected
Prospectus, if required by law to have so delivered it and if delivered
would have been a complete defense against the person asserting such loss,
claim, liability, expense or damage. This indemnity agreement will be in
addition to any liability that the Fund and the Investment Adviser might
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Fund
and the Investment Adviser, each person, if any, who controls the Fund or
the Investment Adviser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, each trustee of the Fund and each
officer of the Fund who signs the Registration Statement to the same extent
as the foregoing indemnity from the Fund or the Investment Adviser to the
Underwriter, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission of a material fact made in reliance on
and in conformity with information relating to such Underwriter furnished
in writing to the Fund by such Underwriter expressly for use in the
Registration Statement, the Preliminary Prospectus or Prospectus. This
indemnity will be in addition to any liability that such Underwriter might
otherwise have; provided, however, that in no case shall such Underwriter
be liable or responsible hereunder for any amount in excess of the fees and
commissions received by such Underwriter.
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21
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
7, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission to so notify such
indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provision of this Section 7
unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable
to the indemnified party for any legal or other expenses except as provided
below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees, disbursements and other charges of such counsel will
be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded
(based on the advice of counsel) that there may be legal defenses available
to it or other indemnified parties that are different from or in addition
to those available to the indemnifying party (3) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases
the reasonable fees disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. Subject to the
requirements of Investment Company Act Release No. 11330, all such fees,
disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm (in addition
to local counsel) admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. An indemnifying party will not
be liable for any settlement of any action or claim
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effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior
written consent of such indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 7 (whether
or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability to such claimants arising or that may arise out of
such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7
is applicable but for any reason is held to be unavailable from the Fund,
the Investment Adviser, or the Underwriters, the Fund, the Investment
Adviser and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid
in settlement (in compliance herewith) of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the
Fund and the Investment Adviser from persons other than the Underwriters,
such as persons who control the Fund and the Investment Adviser within the
meaning of the Securities Act or the Exchange Act, officers of the Fund who
signed the Registration Statement and directors of the Fund, who may also
be liable for contribution) to which the Fund, the Investment Adviser and
the Underwriters may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Fund and the Investment
Adviser on the one hand and the Underwriters on the other. The relative
benefits received by the Fund and the Investment Adviser (treated jointly
for this purpose as one person) on the one hand 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
bear to the total fees and commissions received by the Underwriters. If,
but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only such relative
benefits referred to in the foregoing sentence but also the relative fault
of the Fund and the Investment Adviser (treated jointly for this purpose as
one person) on the one hand and the Underwriters on the other hand in
connection with respect to the statements or omissions or alleged
statements or omissions that resulted in the losses, claims, liabilities,
expenses or damages (including any investigative, legal or other expenses
reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), as well as any
other relevant equitable considerations appropriate in the circumstances.
Such relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Fund, the Investment Adviser or
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23
the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission and any other equitable considerations appropriate in the
circumstances. The Fund, the Investment Adviser and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or
damage , or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purposes of this Section 7(d) any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding any other provisions of this Section 7(d), the Underwriters
shall not be required to contribute any amount in excess of the fees and
commissions received by them and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7(d), any
person who controls a party to this Agreement within the meaning of the
Securities Act will have the same rights to contribution as that party, and
each trustee of the Fund and each officer of the Fund who signed the
Registration Statement will have the same rights to contribution as the
Fund, subject in each case to the provisions hereof. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may
be made under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 7(d). No party will be
liable for contribution with respect to any action or claim settled without
its written consent (which consent shall not be unreasonably withheld). The
Underwriter's obligations to contribute pursuant to this Section 7 are
several in proportion to the respective number of TAPS set forth opposite
their names in Schedule 1 (or such number of TAPS as determined pursuant to
Section 9 hereof) and not joint.
(e) Notwithstanding any other provisions in this Section 7, no
person shall be entitled to indemnification or contribution under this
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith or gross negligence
in the performance of its duties hereunder, or by reason of such person's
reckless disregard of such person's obligations and duties hereunder.
(f) The Fund and the Investment Adviser acknowledge that the
statements with respect to (1) the sales load with respect to the sale of
the TAPS as set
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forth on the cover page of the Prospectus and (2) the (i) list of
Underwriters and the number of TAPS allocated to each and (ii) the
disclosure in the first two paragraphs under the caption "Underwriting" in
the Prospectus, constitute the only information furnished in writing to
the Fund by the Managing Representative on behalf of the Underwriters
expressly for use in such document. The Underwriters severally confirm that
these statements are correct in all material respects and were so furnished
by or on behalf of the Underwriters severally for use in the Prospectus.
8. Termination. This Underwriting Agreement may be terminated
by the Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the
Registration Statement and the time when any of the TAPS are first
generally offered pursuant to this Underwriting Agreement by the Managing
Representative to dealers by letter or telegram;
(b) at or before the TAPS Closing Date if, in the sole
judgment of the Managing Representative, payment for and delivery of any
TAPS is rendered impracticable or inadvisable because (1) trading in the
TAPS or the Common Shares of the Fund is suspended by the Commission or
trading in the Common Shares is suspended by the principal exchange that
lists the Common Shares, (2) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market
shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange or over-the-counter
market, or, (3) additional material governmental restrictions, not in force
on the date of this Underwriting Agreement, have been imposed upon trading
in securities or trading has been suspended on any U.S. securities
exchange, (4) a general banking moratorium has been established by U.S.
federal or New York authorities or (5) any material adverse change in the
financial or securities markets in the United States or in political,
financial or economic conditions in the United States or any outbreak or
material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred
the effect of any of which is such as to make it, in the sole judgment of
the Managing Representative, impracticable or inadvisable to market the
TAPS on the terms and in the manner contemplated by the Prospectus; or
(c) at or before the TAPS Closing Date, if any of the
conditions specified in Section 6 have not been fulfilled when and as
required by this Underwriting Agreement.
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25
9. Substitution of Underwriters. If one or more of the
Underwriters fails to purchase on the TAPS Closing Date the TAPS agreed to
be purchased on such date by such Underwriter or Underwriters and this
Underwriting Agreement has not been terminated, the Managing Representative
may find one or more substitute underwriters to purchase such TAPS or make
such other arrangements as the Managing Representative deems advisable, or
one or more of the remaining Underwriters may agree to purchase such TAPS
in such proportions as may be approved by the Managing Representative, in
each case upon the terms set forth in this Underwriting Agreement. If no
such arrangements have been made within 36 hours after such date, and
(a) the number of TAPS to be purchased by the
defaulting Underwriters on the TAPS Closing Date does not exceed 10% of the
TAPS that the Underwriters are obligated to purchase on the TAPS Closing
Date, each of the nondefaulting Underwriters will be obligated to purchase
such TAPS on the terms set forth in this Underwriting Agreement in
proportion to their respective obligations under this Underwriting
Agreement, or
(b) the number of TAPS to be purchased by the
defaulting Underwriters on the TAPS Closing Date exceeds 10% of the TAPS to
be purchased by all the Underwriters on such date, the Fund will be
entitled to an additional period of 24 hours within which to find one or
more substitute underwriters reasonably satisfactory to the Managing
Representative to purchase such TAPS on the terms set forth in this
Underwriting Agreement.
In any such case, either the Managing Representative or the
Fund will have the right to postpone the TAPS Closing Date for not more
than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration
Statement or the Prospectus) may be effected by the Managing Representative
and the Fund. If the number of TAPS to be purchased on such TAPS Closing
Date by such defaulting Underwriter or Underwriters exceeds 10% of the TAPS
that the Underwriters are obligated to purchase on such date, and none of
the nondefaulting Underwriters or the Fund makes arrangements pursuant to
this Section within the period stated for the purchase of the TAPS that the
defaulting Underwriters agreed to purchase, this Underwriting Agreement
will terminate without liability on the part of any nondefaulting
Underwriter, the Fund or the Investment Adviser, except as provided in
Sections 5(g) and 7 hereof. This Section 9 will not affect the liability of
any defaulting Underwriter to the Fund or the Adviser or the nondefaulting
Underwriters arising out of such default. A substitute underwriter will
become an Underwriter for all purposes of this Underwriting Agreement.
10. Miscellaneous.
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(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the
Fund, the Investment Adviser and the Underwriters in this Underwriting
Agreement will remain in full force and effect regardless of any
termination of this Underwriting Agreement. The reimbursement,
indemnification and contribution agreements in Sections 5(g) and 7 hereof
and the representations and agreements of the Fund, the Investment Adviser
and the Underwriters in this Underwriting Agreement shall survive the TAPS
Closing Date and shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, the Fund, the
Investment Adviser or any controlling person and delivery of and payment
for the TAPS.
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Fund, the Investment Adviser and their successors and
assigns, and, to the extent expressed in this Underwriting Agreement, for
the benefit of persons controlling any of the Underwriters, the Fund, the
Investment Adviser and directors and officers of the Fund, the Investment
Adviser, and their respective successors and assigns, and no other person,
partnership, association or corporation will acquire or have any right
under or by virtue of this Underwriting Agreement. The term "successors and
assigns" does not include any purchaser of the TAPS from any Underwriter
merely because of such purchase.
(c) All notices and communications under this Underwriting
Agreement will be in writing, effective only on receipt and mailed or
delivered, by messenger, facsimile transmission or otherwise, to the
Underwriters in care of PaineWebber Incorporated, Attn.: Financial
Institutions Group, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
to the Fund or the Investment Adviser at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attn.: Chief Legal Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and
construed in accordance with the laws of the State of New York without
reference to choice of law principles thereof (except Section 10(f) below,
which will be governed by Massachusetts law).
(f) A copy of the Agreement and Declaration of Trust of the
Fund is on file with the Secretary of The Commonwealth of Massachusetts,
and notice hereby is given that this Underwriting Agreement is executed on
behalf of the Fund and that the obligations of the Fund arising out of this
Underwriting Agreement are not binding upon
26
27
any of the Trustees or shareholders of the Fund individually but are
binding only upon the assets and properties of the Fund.
All representations, warranties, and agreements of the Fund
and the Investment Adviser contained herein or in certificates or other
instruments delivered pursuant hereto, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of
any Underwriter or any of its controlling persons and shall survive
delivery of and payment for the TAPS hereunder.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
The Fund, the Investment Adviser and the Underwriters each
hereby irrevocably waive any right they may have to a trial by jury in
respect of any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Managing Representative, the Fund and the Investment Adviser.
27
28
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Investment Adviser and the several Underwriters.
Very truly yours,
Nuveen Senior Income Trust
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Nuveen Senior Loan Asset Management Inc.
By:
-------------------------------
Name: Xxxx X. Berkshire
Title: Vice President
Confirmed:
PaineWebber Incorporated
As Managing Representative of the Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
By: PaineWebber Incorporated
By: Acting on behalf of itself and
------------------------- and the Underwriters named in Schedule 1
Name: Xxxx X. Reit
Title: Director
29
SCHEDULE 1
NUMBER OF TAPS
NAME TO BE PURCHASED
PaineWebber Incorporated
Total
30
ANNEX A
Form of VPKK Opinion
, 2000
XXXXX XXXXXX INCORPORATED
[Underwriters]
c/x XXXXX XXXXXX INCORPORATED
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Nuveen Senior Income Fund (the "Fund"), in
connection with (i) the authorization of shares and the issuance and
sale by the Fund of shares of the Fund's Series Taxable Auctioned
Preferred Shares, par value $.01 per share, with a liquidation preference of
$25,000 per share (the "Shares"), pursuant to the Underwriting Agreement dated
, 2000, (the "Underwriting Agreement"), by and among you (the
"Underwriters"), the Fund and Nuveen Senior Loan Asset Management, Inc. (the
"Adviser"), and (ii) the registration of the Shares under the Securities Act of
1933, as amended (the "1933 Act"). This opinion is provided to you pursuant to
Section of the Underwriting Agreement. Capitalized terms not otherwise
defined herein are defined as set forth in the Underwriting Agreement.
In rendering this opinion, we have examined:
a. the Underwriting Agreement;
b. the Declaration of Trust (the "Declaration") and By-Laws
("By-Laws") of the Fund, including all amendments thereto (collectively, the
"Organizational Documents");
c. the Fund's registration statement on Form N-2 (Registration
Nos. 333- and 811- ) and pre-effective amendments No. 1 and No. 2
thereto, as filed with the Securities and Exchange Commission (the "Commission")
(such registration statement as finally amended at the time it became effective
under the 1933 Act, being herein referred to as the "Registration Statement"),
the exhibits to the Registration Statement as filed with the Commission, and the
prospectus and statement of additional information included in the Registration
Statement in the
31
XXXXXX PRICE
Page 2
form filed by the Fund pursuant to the Rules and Regulations (herein referred to
collectively as the "Prospectus");
d. the Fund's Statement Establishing and Fixing the Rights and
Preferences of the Shares (the "Statement");
e. the Auction Agency Agreement, the Investment Management Agreement,
the Custodian Agreement, and the Fund Accounting Agreement (collectively, the
"Fund Agreements") and the Letter of Representations relating to the Shares;
f. a copy, certified by the Secretary of the Fund, of the minutes of
the meeting of the Board of Trustees of the Fund held on and , at
which all Trustees were present and at which they unanimously adopted
resolutions to authorize the Statement, the issuance and sale of the Shares and
the execution, delivery and performance of the Underwriting Agreement and the
Fund Agreements;
g. the certificates and documents being delivered on the date hereof at
the closing of the sale of the Shares pursuant to the Underwriting Agreement;
and
h. such other documents as we, in our professional judgment, have
deemed necessary or appropriate as a basis for the opinions set forth below
(items (a) - (e) are referred to herein collectively as the "Transaction
Documents").
In examining the Transaction Documents, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
documents purporting to be originals and the conformity to originals of all
documents submitted to us as copies. As to questions of fact material to our
opinion, we have relied (without investigation) upon certificates and written
statements of officers and employees of, and the accountants for, the Fund and
of officers and employees of the Adviser and certain public officials. We have
also assumed that each of the Transaction Documents has been duly authorized,
executed and delivered by, and constitutes the legal and valid obligation of
each party thereto (other than the Fund) and is enforceable against each such
party (other than the Fund) in accordance with its terms. With respect to
matters based on our knowledge, our opinion is based on such information as has
come to the actual attention of the attorneys in our firm who have represented
the Fund in connection with the transactions contemplated by the Transaction
Documents.
We express no opinion as to the laws of any jurisdiction other than the
federal law of the United States, and the laws of the States of Illinois (except
that we express no opinion as to any choice of law provisions thereof) and the
Commonwealth of Massachusetts. Insofar as this opinion pertains to matters
involving the laws of the Commonwealth of Massachusetts, we are relying, with
your consent, solely upon the opinion of Xxxxxxx Xxxx LLP, special Massachusetts
counsel to the
32
XXXXXX PRICE
Page 3
Fund, dated , 2000, which is satisfactory in substance and form to
us and may be relied upon by us and by the Underwriters and counsel for the
Underwriters.
Based upon and subject to the qualifications, assumptions and
limitations set forth herein, we are of the opinion that:
(1) The Fund is duly organized and existing under the Fund's
Declaration and the laws of the Commonwealth of Massachusetts as a voluntary
association with transferable shares of beneficial interest, commonly referred
to as a "Massachusetts business trust, 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 amendments or supplements 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 to so register or so 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;
(2) To the best of our knowledge, the Fund has no subsidiaries.
(3) To the best of our knowledge, the capitalization of the Fund
is as set forth in the Registration Statement. All of the outstanding common
shares of the Fund have been duly authorized and validly issued, are fully paid
and nonassessable, except that as set forth in the Registration Statement,
shareholders of a Massachusetts business trust may under certain circumstances
be held liable for its obligations, and are free of any statutory preemptive or,
to the best of our knowledge, similar rights that entitle any person to acquire
any such shares upon the issuance thereof by the Fund pursuant to any agreement
known to us to which the Fund is a party. No person is entitled to any
preemptive or similar rights in connection with the issuance of the TAPS.
(4) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable, except that as set forth in the Registration Statement,
shareholders of a Massachusetts business trust may under certain circumstances
be held liable for its obligations. Except as set forth in the Declaration and
the Statement, there are no restrictions upon the transfer of any Shares
pursuant to the Declaration or By-Laws of the Fund or any agreement or other
outstanding instrument to which the Fund is a party; and the certificate
evidencing the Shares complies as to form with all requirements of Massachusetts
law;
(5) The Shares conform in all material respects to the description
thereof in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and the shares of beneficial interest of the Fund
conforms in all material respects to the description
33
XXXXXX PRICE
Page 4
thereof in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them); and the authorized and outstanding shares of
beneficial interest of the Fund are as set forth in the Prospectus;
(6) The Registration Statement is effective under the 1933 Act and
the 1940 Act; any required filing of the Prospectus pursuant to Rule 497 of the
Rules and Regulations has been made within the time periods required by Rule
497; no stop-order suspending the effectiveness of the Registration Statement or
order pursuant to Section 8(e) of the 1940 Act has been issued and no proceeding
for any such purpose has been instituted or is pending or to the best of our
knowledge, threatened in writing by the Commission;
(7) The Fund's notification of registration as an investment
company under the 1940 Act on Form N-8A (the "1940 Act Notification"), the
Registration Statement and the Prospectus and each amendment or supplement to
the Registration Statement and the Prospectus as of their respective issue dates
(except the financial statements and other financial data contained therein, as
to which we express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations;
(8) The statements made in the Prospectus under the captions "The
Auction" and "Description of TAPS", insofar as they purport to summarize the
provisions of the Statement or other documents or agreements specifically
referred to therein, constitute accurate summaries of the terms of such
documents, in all material respects;
(9) The statements made in the Prospectus under the caption
"Prospectus Summary-Federal Income Taxes" and both captions entitled "Federal
Taxation" and "Tax Matters", insofar as they constitute matters of law or legal
conclusions, have been reviewed by us and constitute accurate statements of any
such matters of law or legal conclusions, and fairly present the information
called for with respect thereto by Form N-2, in all material respects;
(10) To the best of our knowledge, there are no legal or
governmental proceedings pending or threatened in writing against the Fund, or
to which the Fund or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus (and any amendment or
supplement to either of them), but are not described as required;
(11) The Underwriting Agreement and the Fund Agreements have each
been duly and validly authorized, executed and delivered by the Fund, each
complies with all applicable provisions of the 1940 Act and the rules and
regulations thereunder and the Advisers Act and the rules and regulations
thereunder and each constitutes the valid and binding agreement of the Fund,
enforceable against the Fund in accordance with its terms;
34
XXXXXX PRICE
Page 5
(12) The Fund is registered under the 1940 Act as a closed-end
non-diversified management investment company; the provisions of the
Declaration, Statement and By-Laws of the Fund and the investment policies and
restrictions described in the Prospectus under the caption "Prospectus
Summary--Investment Objective and Policies", "The Fund", "Principal Investment
Risks", captions entitled "The Fund's Investments", "Investment Objectives and
Policies" and "Investment Policies and Techniques," comply with the requirements
of the 1940 Act, in all material respects;
(13) To the best of our knowledge, no person is serving or acting
as an officer, director or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the 1940 Act Rules and Regulations and
the Investment Advisers Act of 1940 ("Advisers Act") and the Advisers Act Rules
and Regulations;
(14) Neither the issuance and sale of the Shares by the Fund
pursuant to the Underwriting Agreement, the execution and delivery of the
Underwriting Agreement or any of the Fund Agreements by the Fund, nor the
performance by the Fund of the transactions contemplated in the Underwriting
Agreement or any of the Fund Agreements (A) requires any consent, approval,
authorization, or other order of or registration or filing with, the Commission,
the National Association of Securities Dealers, national securities exchange,
regulatory body, administrative agency or governmental body, agency or official,
or any arbitrator, any court (except (1) the absence of which, either
individually or in the aggregate, would not have a material adverse effect on
the Fund; (2) such as may have been obtained prior to the date hereof; (3) such
as may be required for compliance with the New York Stock Exchange or state
securities or blue sky laws of various jurisdictions in accordance with the
Underwriting Agreement and (4) the filing of the Statement with the Secretary of
State of the Commonwealth of Massachusetts) or violates or will violate or
constitutes or will constitute a breach of, or a default under, the
Organizational Documents of the Fund or (B) violates or constitutes or a breach
of, or a default under, any agreement, indenture, lease or other instrument
known to us to which the Fund is party or by which it or any of its properties
may be bound, or violates any statute, law, regulation or judgment, injunction,
order or decree applicable to the Fund or any of its properties, or will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Fund pursuant to the terms of any agreement or
instrument known to us to which it is a party or by which any of its property or
assets is bound. To the best of our knowledge, the Fund is not subject to any
order of any court or of any arbitrator, governmental authority or
administrative agency of the United States of America, the State of Illinois or
the Commonwealth of Massachusetts; and
(15) No holder of any security of the Fund has any right pursuant
to any agreement known to us to which the Fund is a party to require
registration of common shares, shares of TAPS or any other security of the Fund
because of the filing of the Registration Statement or consummation of the
transactions contemplated by the Underwriting Agreement.
35
XXXXXX PRICE
Page 6
(16) To the best of our knowledge, the Fund is not overtly in
breach of, or in default under, any material written agreement or instrument to
which it is a party or by which it is or its property is bound or affected.
(17) To the best of our knowledge, the common shares of the Fund
are listed on the New York Stock Exchange.
(18) The Fund does not require any tax or other rulings from
governmental authorities to enable it to qualify as a regulated investment
company under Subchapter M of the Internal Revenue Code.
We have participated in conferences with officers and employees of the Fund
and the Adviser, representatives of the independent accountants for the Fund,
Massachusetts counsel to the Fund, the Underwriters and counsel for the
Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except to the limited extent otherwise covered by paragraphs 5, 7,
8, 9, and 12, and have made no independent check or verification thereof, on the
basis of the foregoing, no facts have come to our attention that would have led
us to believe that (a) the Registration Statement or any amendment or supplement
thereto, at the time it became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements contained therein not misleading,
(b) the Prospectus or any amendment or supplement thereto, as of its issue date
and as of the Closing Date, 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 contained therein, in light of the
circumstances under which they were made, not misleading, or (c) the 1940 Act
Notification as of _________, 1999 contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, except that in
each case we express no opinion with respect to the financial statements,
schedules and other financial information and statistical data included therein
or excluded therefrom or the exhibits to the Registration Statement.
The foregoing opinions are subject to the following qualifications:
a. The enforceability of any obligation of the Fund may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
rehabilitation, moratorium, marshaling or other laws affecting the enforcement
generally of creditors' rights and remedies.
b. The enforceability of any obligation of the Fund is subject to
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law), public
36
XXXXXX PRICE
Page 7
policy, applicable law relating to fiduciary duties, and judicial imposition of
an implied covenant of good faith and fair dealing.
c. No opinion is given herein as to the availability of specific
performance or equitable relief of any kind.
d. The opinions expressed herein relate only to laws which are
specifically referred to in this opinion and which laws, in our experience, are
normally directly applicable to transactions of the type provided for in the
Transaction Documents.
e. We express no opinion as to the validity, binding effect or
enforceability of (i) purported waivers of any statutory or other rights, court
rules or defenses to obligations or consents to any actions where such waivers
or consents (A) are against public policy or (B) constitute waivers of rights or
consents to actions which by law, regulation or judicial decision may not
otherwise be waived or given; (ii) provisions indemnifying any person against,
or relieving any person of liability for, that person's own negligent or
wrongful acts or in any other circumstances where enforcement of such provisions
would be against public policy or limited or prohibited by applicable law; (iii)
any provisions which purport to authorize or permit any person to act in a
manner which is determined not to be in good faith or commercially reasonable or
any provisions which purport to waive any rights in respect of such acts; (iv)
any provisions which purport to authorize or permit any person to exercise any
right or remedy upon any nonmaterial breach or default; (v) any forum selection
provision; (vi) any powers of attorney to the extent that they purport to grant
rights and powers that may not be granted under applicable law; (vii) any
provisions that purport to permit the exercise of "self-help" remedies,
including, without limitation, the exercise of rights of setoff or purported
rights to enter onto the property of any person or take physical possession of
any property; (viii) any right or obligation to the extent that the same may be
varied by course of dealing or performance; (ix) any provision which may provide
for the compounding of interest or the payment or accrual of interest on
interest; or (x) any provision that is subject to any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence.
f. The opinions expressed herein are matters of professional
judgment and are not a guarantee of result.
This opinion is solely for the information of the addressee hereof and
is not to be quoted in whole or in part or otherwise referred to, nor is it to
be filed with any government agency or any other person, without our prior
written consent, and no one other than the addressee hereof is entitled to rely
on this opinion. This opinion is given to you as of the date hereof and we
assume no obligation to advise you of any change which may hereafter be brought
to our attention.
Very truly yours,
37
ANNEX B
FORM OF OPINION OF XXXX X. BERKSHIRE
REGARDING NUVEEN SENIOR LOAN ASSET MANAGEMENT
1. The Investment Adviser has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus,
and the Investment Adviser is duly licensed and qualified as a foreign
corporation or otherwise and in good standing in each other jurisdic tion in
which it is required to be so qualified and the Investment Adviser owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary for the Investment Adviser to carry on its business as
contemplated in the Registration Statement and the Prospectus.
2. The Investment Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
3. The Investment Adviser has full power and authority to enter into
each of the Underwriting Agreement, the Investment Management Agreement, the
Expense Reimbursement Agreement, the Subscription Agreement and the Pricing
Agreement (together, such agreements being referred to as the "Investment
Adviser Agreements") and to carry out all the terms and provisions thereof to be
carried out by it, and each such agreement has been duly and validly authorized,
executed and delivered by he Investment Adviser; each Investment Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Investment Adviser Agreement constitutes a
legal, valid and binding obligation of the Investment Adviser, enforceable in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) as rights to indemnity thereunder
may be limited by federal or state securities laws.
4. Neither (A) the execution and delivery by the Investment Adviser of
any Investment Adviser Agreement nor (B) the consummation by the Investment
Adviser of the transactions contemplated by, or the performance of its
obligations under any Investment Adviser Agreement conflicts or will conflict
with, or results or will result in
38
a breach of, the Certificate of Incorporation or By-Laws of the Investment
Adviser or any agreement or instrument to which the Investment Adviser is a
party or by which the Investment Adviser is bound, or any law, rule or
regulation, or order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or domestic, applicable
to the Investment Adviser.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Investment Adviser of its obligations
under, any Investment Adviser Agreement, except such as have been obtained under
the Investment Company Act, the Advisers Act, the Securities Act, the Investment
Company Act Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of the Investment Adviser and its business, and the
statements attributed to the Investment Adviser, in the Registration Statement
and the Prospectus comply with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the Investment Company Act
Rules and do not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
7. Except as disclosed in the Registration Statement and Prospectus,
there is no action, suit or proceeding before or by any court, commission,
regulatory body, administrative agency or other governmental agency or body,
foreign or domestic, now pending or, to my knowledge, threatened against or
affecting the Investment Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that could reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Investment Adviser or the ability of the
Investment Adviser to fulfill its respective obligations under any Investment
Adviser Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which I express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the require ments of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering my opinion, I have relied, as to factual matters, upon the
attached written certificates and statements of officers of the Investment
Adviser.
In connection with the registration of the Shares, I have advised the
Investment Adviser as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the Investment
Adviser in the course of the
39
preparation of the registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and reviews of certain
corporate records, documents and proceedings. I also participated in conferences
with representatives of the Fund and its accountants and the Investment Adviser
at which the contents of the registration and Prospectus and related matters
were discussed. With your permission, I have not undertaken, except as otherwise
indicated herein, to determine independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements in
the Registration Statement or Prospectus. On the basis of the information which
was developed in the course of the performance of the services referred to
above, no information has come to my attention that has lead me to believe that
the Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that any
amendment or supplement to the Prospectus, as of its respective date, and as of
the date hereof, contained any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
mis leading (except the financial statements, schedules and other financial data
included therein, as to which I express no view).
40
ANNEX C
FORM OF ACCOUNTANT'S LETTER
March , 2000
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Nuveen
Senior Income Fund (the "Fund") as of , 2000 included in the
Registration Statement on Form N-2 filed by the Fund under the Securities Act
of 1933 (the "Act") (File No.333- ) and under the Investment Company Act of 1940
(the "1940 Act") (File No.811-09571); such statement and our report with respect
to such statement are included in the Registration Statement; we are independent
public accountants with respect to the Fund within the meaning of the Act and
the applicable rules and regulations thereunder.
1. In our opinion, the statement of assets and liabilities included in
the Registration Statement and audited by us complies as to form in all respects
with the applicable accounting requirements of the Act, the 1940 Act and the
respective rules and regulations thereunder.
2. For purposes of this letter we have read the minutes of all meetings
of the Shareholders, the Board of Trustees and all Committees of the Board of
Trustees of the Fund as set forth in the minute books at the offices of the
Fund, officials of the Fund having advised us that the minutes of all such
meetings through October , 1999, were set forth therein.
3. Fund officials have advised us that no financial statements as of
any date subsequent to , 2000, are available. We have made inquiries of
certain officials of the Fund who have responsibility for financial and
accounting matters regarding whether there was any change at , 2000, in
the capital shares or net assets of the Fund as compared with amounts shown in
the , 2000 statement of assets and liabilities included in the Registration
Statement, except for changes that the Registration Statement discloses have
occurred or may occur. On the basis of our inquiries and our reading of the
minutes as described in Paragraph 2, nothing came to our attention that caused
us to believe that there were any such changes.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
41
4. This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
