EXHIBIT H
2,000 Shares Series C
THE NEW AMERICA HIGH INCOME FUND, INC.
Auction Term Preferred Stock
(Liquidation Preference $25,000 Per Share)
UNDERWRITING AGREEMENT
----------------------
April , 1997
XXXXXX BROTHERS INC.,
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The New America High Income Fund, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 2,000 shares of its Auction Term
Preferred Stock, Series C, par value $1.00 per share, with a liquidation
preference of $25,000 per share (the "Stock"). The Stock will be authorized by,
and subject to the terms and conditions of, the Articles Supplementary to be
adopted in connection with the issuance of the Stock (the "Articles
Supplementary") in the form filed as an exhibit to the Registration Statement
defined in Section 1(a). Wellington Management Company, LLP, a Massachusetts
limited liability partnership (the "Adviser"), is the Company's investment
adviser. This is to confirm the agreement concerning the purchase of the Stock
from the Company by you.
1. Representations and Warranties. (a) The Company represents,
warrants and agrees that:
(i) A registration statement on Form N-2 with respect to the
Stock has (A) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder, the Investment
Company Act of 1940, as amended (the "Investment Company Act," and
together with the Securities Act, the "Acts"), and the rules and
regulations of the Commission thereunder (together with the rules and
regulations under the Securities Act, the "Rules and Regulations"),
(B) been filed with the Commission under the Acts and (C) become
effective under the Acts. Copies of such registration statement as
amended to date have been delivered by the Company to you. A
notification of registration on Form N-8A (the "Notification") has
been filed by the Company with the Commission under the Investment
Company Act. As used in this Agreement, "Effective Time" means the
date and time as of which such registration statement or the most
recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
"Effective Time"; "Preliminary Prospectus" means each prospectus or
statement of additional information included in such registration
statement, or amendments thereof, before it became effective under the
Acts and any prospectus filed with the Commission by the Company with
your consent pursuant to Rule 497 of the Rules and Regulations ("Rule
497") or any document required to be filed pursuant to Rule 482 of the
Rules and Regulations (whether or not filed pursuant to Rule 497
thereunder); "Registration Statement" means the registration statement
referred to in this Section 1(a), as amended at the Effective Time,
including all information contained in the final prospectus filed with
the Commission pursuant to Rule 497 and deemed to be a part thereof as
of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus
and statement of additional information relating to the Stock, as
first filed pursuant to Rule 497. The Commission has not issued any
order preventing or suspending the
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use of any Preliminary Prospectus and the Company has not received any
notice from the Commission pursuant to Section 8(e) of the Investment
Company Act with respect to the Notification or the Registration
Statement.
(ii) The Registration Statement conforms and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform, in all respects to the
requirements of the Acts and the Rules and Regulations and do not and
will not, as of the Effective Date (as to the Registration Statement
and any amendment thereto) and as of the filing date (as to the
Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the Notification complied in all material
respects with the requirements of the Investment Company Act and the
Rules and Regulations and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by you specifically for inclusion therein.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification except where failure to do so
will not have a material adverse effect upon the Company, or on the
ability of the Company to perform its obligations under any of the
Company Agreements (as defined below), and has all power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged; and the Company has no subsidiaries.
(iv) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and nonassessable and conforms to the description thereof
contained in the Prospectus.
(v) The shares of the Stock have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and non-assessable
and will conform to the description thereof contained in the
Prospectus.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company. The Investment Advisory Agreement (the
"Advisory Agreement") between the Company and the Adviser; the Auction
Agent Agreement, including the form of Broker-Dealer Agreement (the
"Auction Agent Agreement") between the Company and Bankers Trust
Company (the "Auction Agent"); the Letter Agreement, among the
Company, The Depository Trust Company ("DTC") and the Auction Agent;
the Custodian Agreement between the Company and State Street Bank &
Trust Company (the "Custodian"); and the Transfer Agency Agreement
between the Company and State Street Bank and Trust Company
(collectively, the "Company Agreements") have each been duly
authorized, executed and delivered by the Company; each constitutes
the valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing. The execution, delivery and performance of this
Agreement and the Company Agreements by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby and the issuance and delivery of the Stock will not result
in a breach or violation by the Company of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, or other agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the properties or assets of the Company is subject, nor
will such actions result in a violation of the provisions of the
corporate charter, including the Articles Supplementary, or by-laws of
the Company, any statute or any order, rule or regulation of any court
or governmental agency
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or body having jurisdiction over the Company or any of its properties
or assets; and except for the registration of the Stock under the Acts
and such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities
laws in connection with the purchase and distribution of the Stock by
you and the rating agency confirmation required pursuant to Part I,
Section 12(c) of the Articles Supplementary, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Company Agreements
and the consummation of the transactions contemplated hereby and
thereby.
(vii) Since the date of the latest audited financial statements
of the Company, there has not been any change in the capital stock of
the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company, otherwise than as set forth
or contemplated in the Prospectus.
(viii) The financial statements (including the related notes
thereto) filed as part of the Registration Statement or included in
any Preliminary Prospectus or the Prospectus present fairly the
financial condition and results of operations of the Company, at the
dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(ix) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and
who have delivered the initial letter referred to in Section 7(g)
hereof, are independent public accountants as required by the Acts and
the Rules and Regulations.
(x) There are no legal or governmental proceedings pending to
which the Company is a party or of which any property or asset of the
Company is subject, which, if determined adversely to the Company
might have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of
the Company; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(xi) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Acts or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits
to the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations.
(xii) The Company is not (A) in violation of its charter or
by-laws, (B) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (C) is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its properties or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise
or other governmental authorization or permit necessary to the
ownership of its properties or assets or to the conduct of its
business.
(xiii) The Company is registered with the Commission under the
Investment Company Act as a closed-end, diversified management
investment company. The Company is, and at all times through the
completion of the transactions contemplated hereby, will be, in
compliance in all material respects with the terms and provisions of
the Acts. No person is serving or acting as an officer, director or
investment adviser of the Company except in accordance with the
provisions of the Investment Company Act and the Investment Advisers
Act of 1940, as amended (the "Advisers Act"), and the rules and
regulations of the Commission under such acts.
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(xiv) At all times since its inception, as required by Subchapter
M of the Internal Revenue Code of 1986, as amended, the Company has
qualified as a regulated investment company under the Code.
(xv) Any advertising, sales literature or other promotional
material prepared or authorized in writing by the Company for use in
connection with the offering or sale of the Stock (collectively,
"sales material") when used in accordance with its intended use
complied and complies with the requirements of the Acts, the Rules and
Regulations and the rules and interpretations of the National
Association of Securities Dealers Regulation, Inc. and no such sales
material when used in accordance with its intended use contained or
contains any untrue statement of a material fact or omitted or omits
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.
(xvi) The Fund has delivered, and so long as a Prospectus is
required to be delivered with respect to transactions in the Stock,
will deliver upon request copies of the then current statement of
additional information with respect to the Stock in the manner and
within the time required by the Acts and the Rules and Regulations.
(b) The Adviser represents, warrants and agrees that:
(i) The Adviser has been duly organized and is validly existing
as a limited liability partnership under the laws of the Commonwealth
of Massachusetts, and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged.
(ii) The Adviser is duly registered with the Commission under the
Advisers Act as an investment adviser, and there does not exist any
proceeding or any facts or circumstances the existence of which could
lead to any proceeding which could adversely affect the registration
of the Adviser with the Commission. The Adviser is not prohibited by
the Advisers Act or the Investment Company Act, or the rules and
regulations under such acts, from acting for the Company under the
Advisory Agreement as contemplated by the Prospectus.
(iii) The description of the Adviser in the Prospectus is true
and correct in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(iv) This Agreement and the Advisory Agreement each have been
duly authorized, executed and delivered by the Adviser. The Advisory
Agreement constitutes the valid and binding obligation of the Adviser
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing. The execution, delivery and performance of
this Agreement and the Advisory Agreement by the Adviser and the
consummation by the Adviser of the transactions contemplated hereby
and thereby will not result in a breach or violation by the Adviser of
any of the terms or provisions of, or constitute a default by the
Adviser under, any material indenture, mortgage, deed of trust, loan
agreement of the Adviser, other agreement or instrument to which the
Adviser is a party or by which the Adviser is bound or to which any of
the properties or assets of the Adviser is subject, nor will such
actions result in a violation of the provisions of the partnership
agreement of the Adviser (the "Partnership Agreement"), any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Adviser or any of its properties or
assets; and except for registration of the Stock under the Acts and
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities
laws, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or the Advisory Agreement by the Adviser and the consummation by the
Adviser of the transactions contemplated hereby and thereby.
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(v) There are no legal or governmental proceeding pending to
which the Adviser is a party or of which any property or asset of the
Adviser is subject, which, if determined adversely to the Adviser
might have a material adverse effect on the financial position,
results of operations, business or prospects of the Adviser; and to
the best of the Adviser's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(vi) The Adviser is not in violation of the Partnership Agreement
or in default under any agreement, indenture or instrument.
2. Purchase of the Stock. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to sell to you, and you agree to purchase from the
Company, the Stock. The price to be paid by you for the Stock shall be $ per
share. The Company shall not be obligated to deliver any of the Stock to be
delivered on the Delivery Date (as hereinafter defined) except upon payment for
all the Stock to be purchased on the Delivery Date as provided herein.
3. Offering of Stock. Upon authorization by you of the release of the
Stock, you propose to offer the Stock for sale upon the terms and conditions set
forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of and payment for
the Stock shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between you and the
Company. This date and time are sometimes referred to as the "Delivery Date." On
the Delivery Date, the Company shall deliver or cause to be delivered the
certificate representing the Stock to you against payment to or upon the order
of the Company of the purchase price by wire transfer of same day funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of your obligation hereunder. Upon
delivery, the Stock shall be represented by one certificate registered in the
name of Cede & Co., as nominee for The Depository Trust Company. The Company
shall make the certificate representing the Stock available for inspection by
you in New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To file the Prospectus pursuant to Rule 497 of the Rules and
Regulations not later than the second business day following the
earlier of the date of determination of the offering price or the date
the Prospectus is first used after the Effective Date of the
Regulation Statement; to make no further amendment or any supplement
to the Registration Statement or to the Prospectus prior to the
Delivery Date except as permitted herein; to advise you promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to you and to your counsel a signed copy
of the Registration Statement as originally filed with the Commission,
and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(c) To deliver promptly to you in New York City such number of
the following documents as you shall request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than
this Agreement, the Auction Agent
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Agreement, the Letter of Representations and the Articles
Supplementary), (ii) any amendment to the Notification filed with the
Commission, (iii) each Preliminary Prospectus, the Prospectus (not
later than 10:00 A.M., New York City time, on the day following the
execution and delivery of this Agreement) and any amended or
supplemented Prospectus (not later than 10:00 A.M., New York City
time, on the day following the execution and delivery of this
Agreement) and (iv) if the delivery of a prospectus is required at any
time after the Effective Time of the Registration Statement in
connection with the offering or sale of the Stock (or any other
securities relating thereto) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Acts, to notify you and, upon
your request to prepare and furnish without charge to you and to any
dealer in securities as many copies as you may from time to time
request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or you, be
required by the Acts or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus, or (ii) any
Prospectus pursuant to Rule 497 of the Rules and Regulations, to
furnish a copy thereof to you and your counsel and to refrain from
filing any such amendment, supplement or Prospectus to which you shall
reasonably object after being timely furnished in advance a copy
thereof.
(f) As soon as practicable after the Effective Date of the
Registration Statement, to make generally available to its security
holders and to deliver to you an earnings statement of the Company,
complying with the requirements of Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the
Company, Rule 158).
(g) For a period of five years from the Effective Date of the
Registration Statement, to furnish to you copies of all materials
furnished by the Company to shareholders and all public reports and
all reports and financial statements furnished by the Company to the
New York Stock Exchange, Inc. pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any rule or regulation of the Commission thereunder.
(h) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus.
(i) Except for the shares of Stock and any shares of common stock
of the Company issued to shareholders pursuant to the Company's
Dividend Reinvestment and Cash Purchase Plan, not to offer, sell or
register any securities with the Commission or announce an offering of
any securities of the Company within 90 days after the date hereof.
(j) The Company will use its reasonable best efforts to cause the
Stock, prior to the Delivery Date, to be assigned ratings of "AAA" by
Fitch Investors Service, Inc. ("Fitch") and "aaa" by Xxxxx'x Investors
Service, Inc. ("Moody's), respectively.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Acts of the Registration Statement and the Notification and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) any fees charged by securities
7
rating services for rating the Stock; (e) the fees and expenses of the Auction
Agent as set forth in the Auction Agent Agreement; and (f) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that, except as provided in this Section and in Section
10, you shall pay your own costs and expenses, including the fees and expenses
of your counsel and any transfer taxes on the Stock which you may sell;
7. Conditions of Your Obligations. Your obligations hereunder are
subject to the accuracy, when made and on the Delivery Date, of the
representations and warranties of the Company and the Adviser contained herein,
to performance by the Company and the Adviser of their respective obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop-order suspending
the effectiveness of the Registration Statement or any part thereof or
order pursuant to Section 8(e) of the Investment Company Act shall
have been issued, and no stop-order proceeding or proceeding for an
order pursuant to Section 8(e) of the Investment Company Act shall
have been initiated or threatened by the Commission; any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) You shall not have discovered and disclosed to the Company on
or prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of your counsel, Xxxxxxx
Xxxxxxx & Xxxxxxxx, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement and the Stock
and the form of the Registration Statement and the Prospectus and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects in the
reasonable judgment of your counsel, Xxxxxxx Xxxxxxx & Xxxxxxxx, and
the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) The Company shall have furnished to you and to Xxxxx'x and
Fitch, as applicable, a 1940 Act ATP Asset Coverage Certificate, an
ATP Basic Maintenance Certificate and an Accountant's Certificate
(each as defined in the Prospectus) each dated the Delivery Date and
in form and substance satisfactory to Xxxxx'x and Fitch, as
applicable, and reasonably satisfactory to you.
(e) Xxxxxxx, Procter & Xxxx LLP shall have furnished to you on
the Delivery Date their opinion, as counsel to the Company, addressed
to you and dated the Delivery Date, in form and substance satisfactory
to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business
and is in good standing as a foreign corporation in the
Commonwealth of Massachusetts; and to the best of such counsel's
knowledge, the Company has no subsidiaries.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus.
(iii) The shares of the Stock have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and will conform to the description
thereof contained in the Prospectus.
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(iv) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to any agreement or
other outstanding instrument known to such counsel, pursuant to
the Company's corporate charter, including the Articles
Supplementary, and by-laws and any other agreement or other
instrument known to such counsel, except for the restrictions on
transfer of the shares of Stock contained in the Auction Agent
Agreement.
(v) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company is
a party or of which any property or asset of the Company is the
subject which, if determined adversely to the Company are
reasonably likely to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company; and, to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others.
(vi) The Registration Statement is effective under the Acts;
any required filing of the Prospectus pursuant to Rule 497 has
been made within the time period required by Rule 497; and no
stop-order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the Investment
Company Act has been issued and, to the knowledge of such
counsel, no proceeding for any such purpose is pending or
threatened by the Commission.
(vii) The Registration Statement, as of the Effective Date,
and the Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the
Company prior to the Delivery Date (other than the financial
statements and other financial data contained therein, as to
which such counsel need express no opinion), complied as to form
in all material respects and with the requirements of the Acts
and the Rules and Regulations.
(viii) The statements made in the Prospectus under the
captions "Description of Common Stock," "Description of ATP"
(including in the statement of additional information), "Auction
Procedures" (including in the statement of additional
information), "Rating Agency Guidelines -- 'aaa'/AAA Rating,"
"Rating Agency Guidelines" and "Conversion to Open-End Status and
Repurchase of Shares," insofar as they purport to summarize the
provisions of documents or agreements specifically referred to
therein, fairly present the information called for with respect
thereto by Form N-2.
(ix) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described
in the Prospectus or filed as exhibits to the Registration
Statement by the Acts or by the Rules and Regulations which have
not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(x) To the best of such counsel's knowledge, the Company is
not in default under any material agreement, indenture or
instrument to which it is a party or by which its property may be
bound or in violation of its corporate charter, including the
Articles Supplementary, or by-laws.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company. The Company Agreements have each been
duly authorized, executed and delivered by the Company; each
constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (or
whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The issue and
sale of shares of Stock by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
Company Agreements and the consummation of the transactions
contemplated hereby and thereby will not result in a breach or
violation by the Company of any of the terms or provisions
9
of, or constitute a default by the Company under, any material
indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument of which such counsel has knowledge and
to which the Company is a party or by which the Company is bound
or to which any of the properties or assets of the Company is
subject, nor will such actions result in any violation of the
provisions of the corporate charter, including the Articles
Supplementary, or by-laws of the Company, any Massachusetts or
Maryland statute, the Securities Act, the Exchange Act, the
Investment Company Act or any order, rule or regulation, of which
such counsel has knowledge, of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties or assets; and except for the registration of the
Stock under the Acts and such consents, approvals,
authorizations, registrations or qualifications as may be
required under applicable state securities laws in connection
with the purchase and distribution of the Stock by you, and the
rating agency confirmation required pursuant to Part I, Section
12(c) of the Articles Supplementary, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
Company Agreements and the consummation of the transactions
contemplated hereby and thereby.
(xii) The Company is registered with the Commission under
the Investment Company Act as a closed-end, diversified
management investment company; all required action has been taken
by the Company under the Acts to make the public offering and
consummate the sale of the Stock pursuant to this Agreement; the
provisions of the corporate charter, including the Articles
Supplementary, and by-laws of the Company comply as to form in
all material respects with the requirements of the Investment
Company Act; the provisions of the corporate charter, including
the Articles Supplementary, and by-laws of the Company and the
investment policies and restrictions described in the Prospectus
under the captions "Investment Objective and Policies" and
"Investment Restrictions" comply in all material respects with
the requirements of the Investment Company Act.
(xiii) The statements contained in the Prospectus under the
captions "Taxation" (in both the prospectus and statement of
additional information) insofar as they describe federal
statutes, rules and regulations, constitute a fair summary
thereof.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the Commonwealth of
Massachusetts and the General Corporation Law of the State of Maryland
and that such counsel is not admitted in the State of Maryland; and
(ii) rely (to the extent such counsel deems proper and specifies in
its opinion), as to matters involving the application of the laws of
the State of Maryland upon other counsel of good standing, provided
that such other counsel is satisfactory to you and furnishes a copy of
its opinion to you. Such counsel shall also have furnished to you a
statement, addressed to you and dated the Delivery Date, in form and
substance satisfactory to the you, to the effect that (x) such counsel
has acted as counsel to the Company on a regular basis and has acted
as counsel to the Company in connection with the preparation of the
Registration Statement, and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead it to believe that
the Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary, in light of the
circumstances under which they were made, in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(f) Xxxxx X. Xxxxx, General Counsel of the Adviser, shall have
furnished to you on the Delivery Date his opinion, as counsel to the
Adviser, addressed to you and dated the Delivery Date, to the effect
that:
(i) The Adviser has been duly organized and is validly
existing as a limited liability partnership under the laws of the
State of Massachusetts, and has all power and authority necessary
to own or hold its properties and to conduct the business in
which it is engaged.
10
(ii) This Agreement and the Advisory Agreement has been duly
authorized, executed and delivered by the Adviser. The Advisory
Agreement constitutes the valid and binding obligation of the
Adviser, enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing. The
compliance by the Adviser with all of the provisions of this
Agreement and the Advisory Agreement and the consummation by the
Adviser of the transactions contemplated hereby and thereby will
not result in a breach or violation by the Adviser of any of the
terms or provisions of, or constitute a default by the Adviser
under, any indenture, mortgage, deed of trust, loan agreement, or
other agreement or instrument to which the Adviser is a party or
by which the Adviser is bound or to which any of the properties
or assets of the Adviser is subject, nor will such actions result
in any violation of the provisions of the Partnership Agreement,
any statute, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Adviser
or any of its properties or assets; and except for the
registration of the Stock under the Acts and such consents,
approvals, authorizations, registrations or qualifications as may
be required under applicable state securities laws in connection
with the purchase and distribution of the Stock by you, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement or the Advisory Agreement by the Adviser and the
consummation by the Adviser of the transactions contemplated
hereby and thereby.
(iii) The Adviser is duly registered with the Commission
under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act or the Investment Company Act, or
the rules and regulations under such acts, from acting under the
Advisory Agreement.
(iv) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Adviser is a party
or of which any property or asset of the Adviser is the subject
which, if determined adversely to the Adviser might have a
material adverse effect on the operations, business or prospects
of the Adviser or which could adversely affect the registration
of the Adviser with the Commission and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(v) To the best of such counsel's knowledge, the Adviser is
not in violation of its Partnership Agreement, or in default
under any material agreement, indenture or instrument.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the Commonwealth of
Massachusetts. Such counsel shall also have furnished to you a
statement, addressed to you and dated the Delivery Date, in form and
substance satisfactory to the you, to the effect that (x) such counsel
has acted as counsel to the Adviser on a regular basis and has acted
as counsel to the Adviser in connection with the preparation of the
Registration Statement, and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead it to believe that
the Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus 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, in light of the circumstances under which they
were made, not misleading.
(g) With respect to the letter of Xxxxxx Xxxxxxxx LLP delivered
to you concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to you a letter (the
"bring-down letter") of such accountants, addressed to you and dated
the Delivery Date, (i) confirming that they are independent public
accountants within the meaning of the Acts and are in compliance with
the
11
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(h) The Company shall have furnished to you on the Delivery Date
a certificate, dated the Delivery Date, of its Vice President and
Treasurer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Section 7(a) have been
fulfilled.
(ii) Since the date of the latest audited financial
statements included in the Prospectus there has not been any
change in the capital stock of the Company or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company, otherwise than as
set forth or contemplated in the Prospectus.
(iii) They have carefully examined the Registration
Statement and the Prospectus and no facts have come to their
attention which lead them to believe that (A) the Registration
Statement or the Prospectus, as of the Effective Date, included
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 (B) since the Effective
Date, an event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus which has not been set forth in such a supplement or
amendment.
(i) The Adviser shall have furnished to you on the Delivery Date
a certificate, dated the Delivery Date, of Xxxx Xxx Xxxxx, Senior Vice
President and General Partner of the Adviser, stating that:
(i) The representations, warranties and agreements of the
Adviser in Section 1 are true and correct as of the Delivery Date
and the Adviser has complied with all its agreements contained
herein.
(ii) She has carefully examined the Registration Statement
and the Prospectus and, in their opinion, (A) the Registration
Statement and the Prospectus, as of the Effective Date, as to the
information contained therein or omitted therefrom with respect
to the Adviser, did not include any untrue statement of a
material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading, and (B) since the Effective Date of the
Registration Statement, no event has occurred with respect to the
Adviser which should have been set forth in a supplement, or
amendment to the Registration Statement or the Prospectus which
has not been set forth in such a supplement or amendment.
(j) The Company shall have delivered and you shall have received
evidence satisfactory to you that the shares of Stock are rated at
least "aaa" by Xxxxx'x and "AAA" by Fitch as of the Delivery Date.
(k) Since the date of the latest audited financial statements
included in the Prospectus, there shall not have been any change in
the capital stock of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated
in the Prospectus, the effect of which is, in your judgment, so
material and adverse as to make it impracticable or inadvisable to
12
proceed with the public offering or the delivery of the Stock on the
terms and in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in your judgment,
impracticable or inadvisable to proceed with the public offering or
delivery of the Stock on the terms and in the manner contemplated in
the Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to your
counsel, Xxxxxxx Xxxxxxx & Xxxxxxxx, in the exercise of reasonable judgment.
8. Indemnification and Contribution. (a) The Company shall indemnify
and hold harmless you, your officers and employees and each person, if any, who
controls you within the meaning of the Securities Act from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage or liability, joint or
several, or any action relating to purchases and sales of Stock), to which you,
such officer, employee or controlling person may become subject, under the Acts
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Notification, any Preliminary Prospectus, the
Registration Statement, the Prospectus, any sales material, or in any amendment
or supplement thereto, or (ii) the omission or alleged omission to state in the
Notification, any Preliminary Prospectus, the Registration Statement, the
Prospectus, any sales material, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse you and each such officer, employee
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by you, that officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with the written information
furnished to the Company by you or on your behalf specifically for inclusion
therein and described in Section 8(f). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to you or to any
of your officers, employees or controlling persons.
(b) The Adviser shall indemnify and hold harmless you, your officers
and employees and each person, if any, who controls you within the meaning of
the Securities Act from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage or liability, joint or several, or any action relating to
purchases and sales of Stock), to which you, such officer, employee or
controlling person may become subject, under the Acts or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon any such
untrue statement or
13
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished to the Company by
the Adviser specifically for inclusion therein, and shall reimburse you and each
such officer, employee and controlling person promptly upon demand for any legal
or other expenses reasonably incurred by you, that officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which the Adviser may otherwise have to you or to any of your
officers, employees or controlling persons.
(c) You shall indemnify and hold harmless the Company, the Adviser,
each of their respective directors, officers and employees, and each person, if
any, who controls the Company or the Adviser within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company, the Adviser or
any such director, officer, employee or controlling person may become subject,
under the Acts or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or the
Adviser by you or on your behalf specifically for inclusion therein and
described in Section 8(f), and shall reimburse the Company or the Adviser, and
any such director, officer, employee or controlling person for any legal and
other expenses reasonably incurred by the Company or the Adviser, and any such
director, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which you may otherwise have
to the Company, the Adviser or any of their respective directors, officers or
controlling persons.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party, its directors, officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party and such
directors, officers, employees and controlling persons, under this Section 8 if
such indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it and its directors, officers,
employees and controlling persons which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party and its directors, officers,
employees and controlling persons to employ separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the indemnifying
party or parties. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 8(a), 8(b) and 8(c), shall use its best efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an
14
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), 8(b) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, the Adviser and you from the offering of the Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the Adviser and you with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Adviser and you with respect to such
offering shall be deemed to be in the same proportion as (x) the total proceeds
from the offering of the Stock purchased under this Agreement (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company, (y) the investment advisory fee payable to the Adviser during
the preceding 12 month period and (z) the total sales load received by you,
respectively, in the case of (x) and (z) as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Adviser or you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Adviser and you agree that it would not
be just and equitable if contributions pursuant to this Section 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,
damage or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Stock underwritten
by you and distributed to the public was offered to the public exceeds that
amount of any damages which you have otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) You confirm that the statements with respect to the public
offering of the Stock set forth on the cover page of, and under the caption
"Underwriting" in, the Prospectus, are correct and constitute the only
information furnished in writing to the Company by you or on your behalf
specifically for inclusion in the Registration Statement and the Prospectus.
9. Termination. Your obligations hereunder may be terminated by you by
notice given to and received by the Company prior to delivery of and payment for
the Stock, if prior to that time (i) the Company or the Adviser shall have
failed, refused or been unable to perform any agreement on their part to be
performed hereunder, (ii) any of the events described in Sections 7(k) or 7(l)
have occurred or (iii) you decline to purchase the Stock for any reason
permitted under this Agreement.
10. Reimbursement of Your Expenses. If the Company shall fail to
tender the Stock for delivery to you for any reason permitted under this
Agreement, or you shall decline to purchase the Stock for any reason permitted
under this Agreement (including the termination of this Agreement pursuant to
Section 9), the Company shall reimburse you for the fees and expenses of your
counsel and for such other out-of-pocket expenses as shall have been incurred by
you in connection with this Agreement and the proposed purchase of the Stock,
and upon demand the Company shall pay the full amount thereof to you.
15
11. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(i) if to you, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000);
(ii) if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Xxxxx X. Xxxxx (Fax: (617)
350-8619); and
(iii) if to the Adviser shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Adviser set forth in
the Registration Statement, Attention: Xxxx Xxx Xxxxx (Fax: (617) 790-
7760).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon you, the Company, the Adviser and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company and the
Adviser contained in this Agreement shall also be deemed to be for the benefit
of your officers and employees and the person or persons, if any, who control
you within the meaning of Section 15 of the Securities Act, and (b) your
indemnity agreement contained in Section 8(c) of this Agreement and shall be
deemed to be for the benefit of directors, officers and employees of the Company
and the Adviser and any person controlling the Company or the Adviser within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Adviser and you contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
14. Definition of "Business Day". For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
16
If the foregoing correctly sets forth the agreement among the Company,
the Adviser and you, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
THE NEW AMERICA HIGH INCOME FUND, INC.
By:___________________________________
Title:
WELLINGTON MANAGEMENT COMPANY, LLP
By:___________________________________
Title:
Accepted:
XXXXXX BROTHERS INC.
By:________________________________
Authorized Representative
