NUVEEN FLOATING RATE INCOME OPPORTUNITY FUND
[_______] Common Shares
($.01 par value)
UNDERWRITING AGREEMENT
New York, New York
[__________], 2004
Citigroup Global Markets Inc.
Nuveen Investments, LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Nuveen Floating Rate Income Opportunity Fund, a
Massachusetts business trust (the "Fund"), Nuveen Institutional Advisory Corp.,
a Delaware corporation (the "Investment Adviser"), and Symphony Asset
Management, LLC, a California limited liability company (the "Subadviser" and
the Subadviser, together with the Investment Adviser, each an "Adviser" and
collectively the "Advisers"), address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters [_______] shares (the "Firm Securities") of
its common shares of beneficial interest, par value $.01 per share (the "Common
Shares"). The Fund also proposes to sell to the Underwriters, upon the terms and
conditions set forth herein, up to an additional [_____] Common Shares (the
"Option Securities") to cover over-allotments. The Firm Securities and the
Option Securities are hereinafter collectively referred to as the "Securities."
Unless otherwise stated, the term "you" as used herein means Citigroup Global
Markets Inc. individually on its own behalf and on behalf of the other
Representatives. Certain terms used herein are defined in Section 18 hereof.
The Fund and the Advisers wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
The Fund has entered into an Investment Management Agreement with the
Investment Adviser dated as of June 22, 2004, a Custodian Agreement with State
Street Bank and Trust Company dated as of August 19, 2002, effective as of
[_______], 2004 and a Shareholder Transfer Agency and Service Agreement with
State Street Bank and Trust Company
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dated as of October 7, 2002, effective as of [_______], 2004, and such
agreements are herein referred to as the "Management Agreement," the "Custodian
Agreement" and the "Transfer Agency Agreement," respectively. The Investment
Adviser has entered into an investment sub-advisory agreement with the
Subadviser dated as of June 22, 2004 and such agreement is herein referred to as
the "Sub-Advisory Agreement." Collectively, (i) the Management Agreement, the
Custodian Agreement and the Transfer Agency Agreement are herein referred to as
the "Fund Agreements." In addition, the Fund has adopted a dividend reinvestment
plan (the "Dividend Reinvestment Plan") pursuant to which holders of Common
Shares shall have their dividends automatically reinvested in additional Common
Shares of the Fund unless they elect to receive such dividends in cash.
1. Representations and Warranties of the Fund and the Advisers. The Fund,
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the Investment Adviser and the Subadviser, jointly and severally, represent and
warrant to, and agree with, each Underwriter as set forth below in this Section
1.
(a) The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-115200 and 811-21579) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the Act
and the 1940 Act of the offering and sale of the Securities. The Fund may have
filed one or more amendments thereto, including a related preliminary
prospectus (including the statement of additional information incorporated by
reference therein), each of which has previously been furnished to you. The
Fund will next file with the Commission one of the following: either (1) prior
to the Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final prospectus (including
the statement of additional information incorporated by reference therein)) or
(2) after the Effective Date of such registration statement, a final
prospectus (including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of
clause (2), the Fund has included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the 1940 Act and the Rules and Regulations to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of additional
information incorporated by reference therein) (in the case of clause (1)
above), or such final prospectus (including the statement of additional
information incorporated by reference therein) (in the case of clause (2)
above), shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Fund has advised you, prior to the Execution Time, will be
included or made therein.
(b) Each Preliminary Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, complied when so filed in all material respects with the provisions
of the Act, the 1940 Act and the Rules and Regulations.
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(c) The Registration Statement, in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Prospectus and any amendment or
supplement thereto when filed with the Commission under Rule 497 of the Act
Rules and Regulations and the 1940 Act Notification when originally filed with
the Commission and any amendment or supplement thereto when filed with the
Commission complied or will comply in all material respects with the
provisions of the Act, the 1940 Act and the Rules and Regulations and did not
or will not at any such times contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading; except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(d) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in the
Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Securities have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and, except as described in
the Registration Statement, nonassessable and free of any preemptive or
similar rights and the capital stock of the Fund conforms to the description
thereof in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them).
(e) The Fund has been duly formed and is validly existing in good standing
as a business trust under the laws of The Commonwealth of Massachusetts, with
full power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or to qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net assets or results of
operations of the Fund. The Fund has no subsidiaries.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, whether or not arising from transactions in
the ordinary course of business, that (i) are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required by the Act, the 1940 Act or
the Rules and Regulations, (ii) are not described in the Prospectus and could
reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated
hereby or (iii) are not described in the Prospectus and could reasonably be
4
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund.
(g) There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) or to be
filed as an exhibit to the Registration Statement that are not described or
filed as required by the Act, the 1940 Act or the Rules and Regulations.
(h) The Fund is not in violation of its Declaration of Trust or By-Laws or
in material violation of any material law, ordinance, administrative or
governmental rule or regulation applicable to the Fund, including, without
limitation, the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated in connection therewith, or of any
material decree of the Commission, the NASD, any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund or in breach or default in any
material respect in the performance of any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to
which the Fund is a party or by which it or any of its properties may be
bound.
(i) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or other
order of or registration or filing which has not yet been obtained or made
with the Commission, the NASD, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-regulatory
or administrative agency or any official (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or will
be effected in accordance with this Agreement and except for compliance with
the filing requirements of the NASD Division of Corporate Finance) or
conflicts or will conflict with or constitutes or will constitute a breach of
the Declaration of Trust or By-Laws of the Fund or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default
under, any material agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its properties may be bound or
materially violates or will materially violate any material statute, law,
regulation or filing or judgment, injunction, order or decree applicable to
the Fund or any of its properties or will result in the creation or imposition
of any material lien, charge or encumbrance upon any property or assets of the
Fund pursuant to the terms of any agreement or instrument to which it is a
party or by which it may be bound or to which any of the property or assets of
the Fund is subject.
(j) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (i) there has been no material
adverse change in the condition (financial or other), business, properties,
net assets or results of operations of
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the Fund or business prospects (other than as a result of a change in the
financial markets generally) of the Fund, whether or not arising in the
ordinary course of business, (ii) there have been no transactions entered into
by the Fund which are material to the Fund other than those in the ordinary
course of its business as described in the Prospectus (and any amendment or
supplement thereto) and (iii) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its common stock.
(k) The accountants, Ernst & Young LLP, who have audited or shall audit at
or prior to the Closing Date the Statement of Assets and Liabilities and the
related Statement of Operations both included in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them), are an
independent public accounting firm as required by the Act, the 1940 Act and
the Rules and Regulations.
(l) The financial statements, together with related schedules and notes,
included in the Registration Statement and the Prospectus (or any amendment or
supplement to either of them) present fairly the financial position of the
Fund on the basis stated in the Registration Statement and the Prospectus at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved except as disclosed therein; and the other financial and
statistical information and data included in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) are accurately derived
from such financial statements and the books and records of the Fund.
(m) The Fund, subject to the Registration Statement having been declared
effective and the filing of the Prospectus under Rule 497 under the Act Rules
and Regulations, has taken all required action under the Act, the 1940 Act and
the Rules and Regulations to make the public offering and consummate the sale
of the Securities as contemplated by this Agreement.
(n) The execution and delivery of, and the performance by the Fund of its
obligations under, this Agreement and the Fund Agreements have been duly and
validly authorized by the Fund and this Agreement and the Fund Agreements have
been duly executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(o) Except as disclosed in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), the Fund has not incurred any liability or obligation, direct or
contingent, that is material to the Fund and there has not been any
6
change in the capital stock or material increase in the short-term debt or
long-term debt of the Fund.
(p) The Fund has not distributed and, prior to the later to occur of (i)
the Closing Date and (ii) completion of the distribution of the Securities,
will not distribute to the public in either printed or electronic form any
offering material in connection with the offering and sale of the Securities
other than the Registration Statement, the Preliminary Prospectuses included
in each of Pre-Effective Amendment No. 1 to the Registration Statement,
Pre-Effective Amendment No. 2 to the Registration Statement, Pre-Effective
Amendment No. 3 to the Registration Statement and Pre-Effective Amendment No.
4 to the Registration Statement a, the Prospectus and the advertisements/sales
literature filed by Nuveen Investments, LLC with the NASD on June 17, 2004.
(q) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own its
property and to conduct its business in the manner described in the Prospectus
(and any amendment or supplement thereto); the Fund has fulfilled and
performed all its material obligations with respect to such permits and no
event has occurred which allows or, after notice or lapse of time, would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Fund under any such permit, subject in each
case to such qualification as may be set forth in the Prospectus (and any
amendment or supplement thereto); and, except as described in the Prospectus
(and any amendment or supplement thereto), none of such permits contains any
restriction that is materially burdensome to the Fund.
(r) The Fund maintains and will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization and
with the investment policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the
Internal Revenue Code of 1986, as amended (the "Code"); (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate net
asset value, to maintain accountability for assets and to maintain material
compliance with the books and records requirements under the 1940 Act and the
1940 Act Rules and Regulations; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded account for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(s) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of any
patents, patent licenses, trademarks, service marks or trade names which it
does not own, possess or license.
(t) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably be
expected to cause or result in or which will constitute stabilization or
manipulation of the price of the
7
Common Shares in violation of federal securities laws and the Fund is not
aware of any such action taken or to be taken by any affiliates of the Fund.
(u) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and at
the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the 1940
Act Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940
Act Notification or the Registration Statement (or any amendment or supplement
to either of them).
(v) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Advisers for use in connection with the offering and sale of the Securities
(collectively, "sales material") complied and comply in all material respects
with the applicable requirements of the Act, the Act Rules and Regulations and
the rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were so filed. No sales material contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(w) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and the rules and regulations adopted by the Commission under
the Advisers Act (the "Advisers Act Rules and Regulations").
(x) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of the
filing of the registration statement or consummation of the transactions
contemplated by this Agreement.
(y) The Securities have been duly approved for listing upon notice of
issuance on the New York Stock Exchange (the "NYSE") and the Fund's
registration statement on Form 8-A, under the Exchange Act, has become
effective.
(z) The Fund intends to direct the investment of the proceeds of the
offering of the Securities in such a manner as to comply with the requirements
of Subchapter M of the Code.
(aa) The Fund's directors and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules and
Regulations are in full force and effect; the Fund is in compliance with the
terms of such policy and fidelity bond in all material respects; and there are
no claims by the Fund under any such policy or fidelity bond as to which any
insurance company is denying liability or defending
8
under a reservation of rights clause; the Fund has not been refused any
insurance coverage sought or applied for; and the Fund has no reason to
believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto)
(bb) Except as set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Fund are outstanding.
(cc) Except as disclosed in the Prospectus, no trustee of the Fund is an
"interested person" (as defined in the 0000 Xxx) of the Fund or an "affiliated
person" (as defined in the 0000 Xxx) of any Underwriter listed in Schedule I
hereto.
(dd) Neither the rules of the New York Stock Exchange nor the laws of the
Commonwealth of Massachusetts require that the Common Shares be
represented by certificates.
2. Representations and Warranties of the Advisers. Each of the Investment
----------------------------------------------
Adviser and the Subadviser, severally as to itself only and not jointly or as to
any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser is a corporation, limited liability company or limited
liability partnership duly organized and validly existing in good standing
under the laws of its jurisdiction of incorporation or formation, with full
corporate, company or partnership power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement to
either of them) and is duly registered and qualified to conduct business and
is in good standing in each jurisdiction or place where the nature of its
properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify would not
have a material adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from
acting under the Fund Agreements to which it is a party for the Fund or the
Sub-Advisory Agreement to which it is a party as contemplated by the
Registration Statement and the Prospectus (or any amendment or supplement
thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the Sub-Advisory
Agreement to which it
9
is a party, the execution and delivery of, and the performance by such Adviser
of its obligations under, this Agreement, the Fund Agreements to which it is a
party and the Sub-Advisory Agreement to which it is a party have been duly and
validly authorized by such Adviser; and this Agreement, the Fund Agreements to
which it is a party and the Sub-Advisory Agreement to which it is a party have
been duly executed and delivered by such Adviser and constitute the valid and
legally binding agreements of such Adviser, enforceable against such Adviser
in accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary for
the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Fund Agreements to which it is a
party and the Sub-Advisory Agreement to which it is a party.
(e) Such Adviser is not in violation of its certificate or articles of
incorporation, by-laws, certificate of formation, limited liability company
agreement, limited liability partnership agreement or other organizational
documents or in violation of the applicable provisions of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection therewith
to which it is subject, in default under any material agreement, indenture or
instrument or in breach or violation of any judgment, decree, order, rule or
regulation of any court or governmental or self-regulatory agency or body
except where such violation or breach would not have a material adverse effect
on the condition (financial or other), business, prospects, properties, net
assets or results of operations of the such Adviser or on the ability of the
such Adviser to perform its obligations under this Agreement, the Management
Agreement to which it is a party or the Sub-Advisory Agreement to which it is
a party.
(f) The description of such Adviser and its business, and the statements
attributable to such Adviser, in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), in each case insofar as such
information is set forth in the Registration Statement or the Prospectus)
complied and comply in all material respects with the provisions of the Act,
the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of such Adviser, threatened against such Adviser or to which any of
its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should be
expected to result in any material adverse change in
10
the condition (financial or other), business, properties, net assets or
results of operations of such Adviser or that reasonably should have a
material adverse effect on the ability of such Adviser to fulfill its
obligations hereunder or under the Fund Agreements to which it is a party or
under the Sub-Advisory Agreement to which it is a party.
(h) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (i) there has been no material
adverse change in the condition (financial or other), business, properties,
net assets or results of operations or business prospects of such Adviser,
whether or not arising from the ordinary course of business and (ii) there
have been no transactions entered into by such Adviser which are material to
such Adviser other than those in the ordinary course of its business as
described in the Prospectus.
(i) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus; such Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is a party
and the Sub-Advisory Agreement to which it is a party comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(k) Neither the execution, delivery or performance of this Agreement or
the Fund Agreements by such Adviser which is a party thereto or the
Sub-Advisory Agreement by such Adviser which is a party thereto, nor the
consummation by such Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other order of or
registration or filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative agency or
any official (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in accordance with
this Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the certificate
or articles of incorporation, by-laws, certificate of formation, limited
liability company agreement, limited liability partnership agreement or other
organizational documents of such Adviser or (B) conflicts or will conflict
with or constitutes or will constitute a breach of or a default under, any
material agreement, indenture, lease or other instrument to which such Adviser
is a party or by which it or any of its properties may be bound or materially
violates or will materially violate any material statute, law, regulation or
filing or judgment, injunction, order or decree applicable to such Adviser or
any of its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
11
such Adviser pursuant to the terms of any agreement or instrument to which it
is a party or by which it may be bound or to which any of the property or
assets of such Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus (and in any
amendment or supplement thereto), such Adviser has not taken and nor will it
take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute,
stabilization or manipulation of the price of the Common Shares in violation
of federal securities laws and such Adviser is not aware of any such action
taken or to be taken by any affiliates of such Adviser.
(m) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or similar
electronic means, in each case under its control or at its direction, such
Adviser will install and maintain pre-qualification and password-protection or
similar procedures which are reasonably designed to effectively prohibit
access to such promotional materials by persons other than qualified
broker-dealers and registered representatives thereof.
3. Purchase and Sale. (a) Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $14.325 per
share, the amount of the Firm Securities set forth opposite such Underwriter's
name in Schedule I hereto (or such number of Firm Securities increased as set
forth in Section 10 hereof).
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up
to [_______] Option Securities at the same purchase price per share as the
Underwriters shall pay for the Firm Securities. Said option may be exercised
only to cover over-allotments in the sale of the Firm Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time prior to 9:00 P.M., New York City time on or before the 45th
day after the date of the Prospectus (or if such 45th day shall be a Saturday
or a Sunday or a holiday, on the next business day thereafter when the NYSE is
open for trading) upon written or telegraphic notice by the Representatives to
the Fund setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the settlement
date. The number of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such Underwriter is
purchasing of the Firm Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
4. Delivery and Payment. (a) Delivery of and payment for the Firm
--------------------
Securities shall be made at the office of Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00 A.M.,
New York City time, on [________], 2004 (the
12
"Closing Date"). The place of closing for the Firm Securities and the Closing
Date may be varied by agreement between you and the Fund.
(b) Delivery of and payment for the Option Securities (if the option
provided for in Section 3(b) hereof shall have been exercised) shall be made
at the aforementioned office of Citigroup Global Markets Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may not
be the same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than two nor later than three business days after the
giving of the notice hereinafter referred to, as shall be specified in a
written notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in said notice, of
Option Securities. The place of closing for any Option Securities and the
Option Closing Date for such Option Securities may be varied by agreement
between you and the Fund.
(c) The Firm Securities and any Option Securities shall be registered in
such names and in such denominations as you shall request prior to 1:00 P.M.,
New York City time, (i) in respect of the Firm Securities, on the second
business day preceding the Closing Date and (ii) in respect of Option
Securities, on the day of the giving of the written notice in respect of such
Option Securities. The Firm Securities and any Option Securities to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, through the facilities of the
Depository Trust Company or another mutually agreeable facility, against
payment of the purchase price therefor in immediately available funds to the
order of the Fund.
5. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the Investment
-------------------------------------------
Adviser and the Subadviser, jointly and severally, agree with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective under the Act before the offering of the Firm
Securities may commence, the Fund will use its reasonable best efforts to
cause the Registration Statement or such post-effective amendment to become
effective under the Act as soon as possible. If the Registration Statement has
become effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A of the Act
Rules and Regulations, the Fund will file a Prospectus including such
information pursuant to Rule 497(h) of the Act Rules and Regulations, as
promptly as practicable, but no later than the second business day following
the earlier of the date of the determination of the offering price of the
Securities or the date the Prospectus is first used after the effective date
of the Registration Statement. If the Registration Statement has become
effective and the Prospectus contained therein does not so omit such
information, the Fund will file a Prospectus pursuant to Rule 497(c) or (j) of
the Act Rules and Regulations as promptly as practicable, but no later than
the fifth business day following the date of the later of the effective date
of the Registration Statement or the commencement of the public offering
13
of the Securities after the effective date of the Registration Statement. The
Fund will advise you promptly and, if requested by you, will confirm such
advice in writing (i) when the Registration Statement or such post-effective
amendment has become effective or (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the Act Rules and Regulations
or the certification permitted pursuant to Rule 497(j) of the Act Rules and
Regulations has been timely filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission for
amendment of or a supplement to the Registration Statement, any Preliminary
Prospectus or the Prospectus (or any amendment or supplement to any of the
foregoing) or for additional information, (ii) of the issuance by the
Commission, the National Association of Securities Dealers, Inc. (the "NASD"),
any state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-regulatory
or administrative agency or any official of any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending the use
of the Prospectus, any Preliminary Prospectus or any sales material (as
hereinafter defined), of any notice pursuant to Section 8(e) of the 1940 Act,
of the suspension of qualification of the Securities for offering or sale in
any jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by the Fund, the Advisers,
any affiliate of the Fund or the Advisers or any representative or attorney of
the Fund or the Advisers of any other material communication from the
Commission, the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating to the Fund
(if such communication relating to the Fund is received by such person within
three years after the date of this Agreement), the Registration Statement, the
1940 Act Notification, the Prospectus, any Preliminary Prospectus, any sales
material (as hereinafter defined) (or any amendment or supplement to any of
the foregoing), this Agreement or any of the Fund Agreements and (iv) within
the period of time referred to in paragraph (f) below, of any material adverse
change in the condition (financial or other), business, prospects, properties,
net assets or results of operations of the Fund or the Advisers or of the
happening of any event which makes any statement of a material fact made in
the Registration Statement, the Prospectus, any Preliminary Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to any
of the foregoing) untrue or which requires the making of any additions to or
changes in the Registration Statement, the Prospectus, any Preliminary
Prospectus or any sales materials (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) in order to state a material fact
required by the Act, the 1940 Act or the Rules and Regulations to be stated
therein or necessary in order to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading or of the necessity to amend or supplement the Registration
Statement, the Prospectus, any Preliminary Prospectus or any sales material
(as hereinafter defined) (or any amendment or supplement to any of the
foregoing) to comply with the Act, the 1940 Act, the Rules and Regulations or
any other law or order of any court or regulatory body. If at any time the
Commission, the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or
14
any official shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the Prospectus,
any Preliminary Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) or suspending the
qualification of the Securities for offering or sale in any jurisdiction, the
Fund will use its reasonable best efforts to obtain the withdrawal of such
order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies of
the registration statement and the 1940 Act Notification as originally filed
with the Commission and of each amendment thereto, including financial
statements and all exhibits thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Securities is
completed) and will also furnish to you, without charge, such number of
conformed copies of the registration statement as originally filed and of each
amendment thereto (except any post-effective amendment required by Rule 8b-16
of the 1940 Act Rules and Regulations which is filed with the Commission after
the later of (x) one year from the date of this Agreement and (y) the date on
which the distribution of the Securities is completed), with or without
exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus, any Preliminary
Prospectus or any sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) of which you shall not previously have
been advised or to which you shall reasonably object within a reasonable time
after being so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required to be delivered in connection with
sales by any Underwriter or dealer, file any information, documents or reports
pursuant to the Exchange Act, without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to
or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund has
delivered to you, without charge, in such quantities as you have reasonably
requested, copies of each form of any Preliminary Prospectus. The Fund
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Securities are
offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Preliminary Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time, for such period as in the opinion of counsel
for the Underwriters a prospectus is required by the Act to be delivered in
connection with sales of Securities by any Underwriter or dealer, the Fund
will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Fund consents to the use of the
Prospectus (and of any amendments or supplements thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
15
jurisdictions in which the Securities are offered by the several Underwriters
and by all dealers to whom Securities may be sold, both in connection with the
offering or sale of the Securities and for such period of time thereafter as
the Prospectus is required by law to be delivered in connection with sales of
Securities by any Underwriter or dealer. If during such period of time any
event shall occur that in the judgment of the Fund or in the opinion of
counsel for the Underwriters is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the Act, the 1940 Act, the Rules and Regulations or
any other law, rule or regulation, the Fund will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate amendment or supplement thereto and will expeditiously furnish to
the Underwriters and dealers, without charge, such number of copies thereof as
they shall reasonably request. In the event that the Prospectus is to be
amended or supplemented, the Fund, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the Underwriters
in connection with the registration or qualification of the Securities for
offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Fund be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month period
commencing after the effective date of the Registration Statement and ending
not later than 15 months thereafter, as soon as practicable after the end of
such period, which earnings statement shall satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6 of
Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish to
you (i) as soon as available, a copy of each report of the Fund mailed to
shareholders or filed with the Commission and (ii) from time to time such
other information concerning the Fund as you may reasonably request.
(k) The Fund agrees to pay the following costs and expenses and all other
costs and expenses incident to the performance by the Fund of its obligations
hereunder: (i) the preparation, printing or reproduction, filing (including,
without limitation, the filing fees prescribed by the Act, the 1940 Act and
the Rules and Regulations) and
16
distribution of the Registration Statement (including exhibits thereto), the
Prospectus, each Preliminary Prospectus and the 1940 Act Notification and all
amendments or supplements to any of them, (ii) printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each
Preliminary Prospectus, any sales material and all amendments or supplements
to any of them as may be reasonably requested for use in connection with the
offering and sale of the Securities, (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp taxes and transfer agent and registrar fees payable in
connection with the original issuance and sale of such Securities, (iv) the
registrations or qualifications of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 6(g)
hereof (including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to the preparation, printing or reproduction and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification), (v) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities, (vi) the fees and
expenses of the Fund's independent accountants, counsel for the Fund and of
the transfer agent, (vii) the expenses of delivery to the Underwriters and
dealers (including postage, air freight and the cost of counting and
packaging) of copies of the Prospectus, the Preliminary Prospectus, any sales
material and all amendments or supplements to the Prospectus as may be
requested for use in connection with the offering and sale of the Securities,
(viii) the printing (or reproduction) and delivery of this Agreement, any
dealer agreements, the preliminary and supplemental Blue Sky Memoranda and all
other company-authorized agreements or other documents printed (or reproduced)
and delivered in connection with the offering of the Securities, (ix) the
filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the NASD and incurred
with respect to the review of the offering of the Securities by the NASD, (x)
the registration of the Securities under the Exchange Act and the listing of
the Securities on the NYSE and (xi) an amount equal to (A) $20,000 plus (B)
$0.0025 per Security for each Security in excess of 2,000,000 sold pursuant to
this Agreement, payable no later than 45 days from the date of this Agreement
to the Underwriters in partial reimbursement of their expenses (but not
including reimbursement for the cost of one tombstone advertisement in a
newspaper that is one quarter of a newspaper page or less in size) in
connection with the offering. Notwithstanding the foregoing, in the event that
the sale of the Firm Securities is not consummated pursuant to Section 3
hereof, the Advisers will pay the costs and expenses of the Fund set forth
above in clauses (i) through (x) of this Section 6(k), and reimbursements of
Underwriter expenses in connection with the offering shall be made in
accordance with Section 8 hereof.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of the
Act Rules and Regulations, whichever is applicable or, if applicable, will
file in a timely fashion the
17
certification permitted by Rule 497(j) of the Act Rules and Regulations and
will advise you of the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, neither the Fund
nor the Advisers will sell, contract to sell or otherwise dispose of or hedge,
any Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or grant any options or warrants to purchase
Common Shares, for a period of 180 days after the date of the Prospectus,
without the prior written consent of Citigroup Global Markets Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither the
Fund nor the Advisers have taken, nor will any of them take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the NYSE concurrently with
the effectiveness of the Registration Statement and to comply with the rules
and regulations of such exchange.
7. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters to purchase any Securities hereunder are
subject to the accuracy of and compliance with the representations, warranties
and agreements of and by the Fund and the Advisers contained herein on and as
of the date hereof, the date on which the Registration Statement becomes or
became effective, the date of the Prospectus (and of any amendment or
supplement thereto), the Closing Date and, with respect to any Option
Securities, any Option Closing Date; to the accuracy and completeness of all
statements made by the Fund, the Advisers or any of their officers in any
certificate delivered to the Representatives or their counsel pursuant to this
Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Securities may commence,
the Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof or
at such later date and time as shall be consented to in writing by you and all
filings, if any, required by Rules 497 and 430A under the Act Rules and
Regulations shall have been timely made; no order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the Fund, the
Advisers or any Underwriter, threatened by the Commission and any request of
the Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) You shall have received on the Closing Date an opinion of Xxxx, Xxxx &
Xxxxx LLC, special counsel for the Fund and the Investment Adviser, dated the
Closing
18
Date and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) The Fund is a business trust duly established, validly existing
and in good standing under the laws of The Commonwealth of Massachusetts
with full power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus (and any amendment or supplement thereto through the
date of the opinion) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or to qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of the Fund;
(ii) The authorized and outstanding capital stock of the Fund is as
set forth in the Registration Statement and Prospectus (or any amendment
or supplement thereto through the date of the opinion); and the
description of the authorized capital stock of the Fund contained in the
Prospectus (or any amendment or supplement thereto through the date of
the opinion) under the caption "Description of Shares" conforms in all
material respects as to legal matters to the terms thereof contained in
the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund outstanding prior
to the issuance of the Securities have been duly authorized and validly
issued and are fully paid and nonassessable, except that, as described
in the Prospectus under the heading, "Certain Provisions in the
Declaration of Trust," shareholders of the Fund may under certain
circumstances be held personally liable for its obligations;
(iv) The Securities have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and not subject to any preemptive rights that entitle or
will entitle any person to acquire any Securities upon the issuance
thereof by the Fund, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(v) The Fund has the power and authority to enter into this Agreement
and the Fund Agreements and to issue, sell and deliver the Securities to
the Underwriters as provided herein and this Agreement and each of the
Fund Agreements have been duly authorized, executed and delivered by the
Fund;
(vi) Assuming due authorization, execution and delivery by the other
parties thereto and that the performance of the Fund Agreements by such
other parties will not violate law, agreements to which such other
parties or their properties are subject or orders applicable to such
other parties, the Fund
19
Agreements constitute the valid, legal and binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
subject to the qualification that the enforceability of the Fund's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles, whether
enforcement is considered in a proceeding in equity or at law;
(vii) The Fund Agreements comply in all material respects with all
applicable provisions of the Act, the 1940 Act, the Advisers Act, the
Rules and Regulations and the Advisers Act Rules and Regulations;
(viii) The Fund is not in violation of its Declaration of Trust or
By-Laws or, to the best knowledge of such counsel after reasonable
inquiry, is not in material default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness, except as may be disclosed in
the Prospectus (and any amendment or supplement thereto);
(ix) No consent, approval, authorization or order of or registration
or filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court
or any other governmental body, agency or regulatory, self-regulatory or
administrative agency or any official is required on the part of the
Fund (except as have been obtained under the Act and the Exchange Act or
such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Securities) for the valid
issuance and sale of the Securities to the Underwriters as contemplated
by this Agreement, performance of the Fund Agreements or this Agreement
by the Fund, the consummation by the Fund of the transactions
contemplated thereby or hereby or the adoption of the Fund's Dividend
Reinvestment Plan;
(x) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend Reinvestment
Plan violates the Declaration of Trust or By-Laws of the Fund or any
material agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties is bound that is
an exhibit to the Registration Statement or that is known to such
counsel after reasonable inquiry or, to the best of such counsel's
knowledge after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any property
or assets of the Fund, nor, to the best of such counsel's knowledge
after reasonable inquiry, will any such action result in any violation
of any existing material law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after reasonable
inquiry, applicable to the Fund or any of its properties, except that,
in the published opinion of the Commission, the indemnification
provisions in this Agreement and the Fund Agreements, insofar
20
as they relate to indemnification for liabilities arising under the
Act, are against public policy as expressed in the Act and therefore
unenforceable;
(xi) The Registration Statement and all post-effective amendments, if
any, have become effective under the Act and, to the best knowledge of
such counsel after reasonable inquiry, no order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by the
Commission; and any filing of the Prospectus and any amendments or
supplements thereto required pursuant to Rule 497 of the Act Rules and
Regulations prior to the date of such opinion has been made in
accordance with Rule 497;
(xii) The Fund is duly registered with the Commission under the 1940
Act as a closed-end, diversified management investment company and all
action has been taken by the Fund as required by the Act and the 1940
Act and the Rules and Regulations in connection with the issuance and
sale of the Securities to make the public offering and consummate the
sale of the Securities as contemplated by this Agreement;
(xiii) The statements made in the Registration Statement and the
Prospectus (and any amendment or supplement thereto through the date of
the opinion) under the caption "Tax Matters" and "Certain Provisions in
the Declaration of Trust" have been reviewed by such counsel and to the
extent they describe or summarize tax laws, doctrines or practices of
the United States, legal matters, agreements, documents or proceedings
discussed therein present a fair and accurate description or summary
thereof as of the date of the opinion;
(xiv) The statements in the Registration Statement and Prospectus (and
any amendment or supplement thereto through the date of the opinion),
insofar as they are descriptions of contracts, agreements or other legal
documents or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be shown;
(xv) The Registration Statement and the Prospectus (and any amendment
or supplement thereto through the date of the opinion) comply as to form
in all material respects with the requirements of the Act, the 1940 Act
and the Rules and Regulations (except that no opinion need be expressed
as to the financial statements and the notes thereto and the schedules
and other financial and statistical data included therein);
(xvi) To the best knowledge of such counsel after reasonable inquiry,
(A) other than as described or contemplated in the Prospectus (or any
amendment or supplement thereto through the date of the opinion), there
are no actions, suits or other legal or governmental proceedings pending
or expressly threatened against the Fund (through the date of the
opinion) and (B) there are no material agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any
amendment
21
or supplement thereto through the date of the opinion) or to be filed
as an exhibit to the Registration Statement that are not described or
filed as required, as the case may be;
(xvii) To the best knowledge of such counsel after reasonable inquiry,
the Fund is not in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any decree
of the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official having jurisdiction over the Fund; and
(xviii) The Securities are duly authorized for listing, subject to
official notice of issuance, on the NYSE and the Fund's registration
statement on Form 8-A under the Exchange Act is effective.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in their opinion, to determine independently
and does not assume any responsibility for, the accuracy or completeness
of the statements in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including
review and discussion of the contents thereof, and nothing has come to the
attention of such counsel that has caused it to believe that the
Registration Statement, at the time the Registration Statement became
effective or the Prospectus, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of The Commonwealth of Massachusetts,
upon the opinion of Xxxxxxx XxXxxxxxx LLP or other counsel of good
standing whom they believe to be reliable and who are satisfactory to the
Representatives; provided that (X) such reliance is expressly authorized
by the opinion so relied upon and a copy of each such opinion is delivered
to the Representatives and is, in form and substance, satisfactory to them
and their counsel and (Y) Xxxx, Xxxx & Xxxxx LLC states in their opinion
that they believe that they and the Underwriters are justified in relying
thereon. References to the Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
22
(c) You shall have received on the Closing Date an opinion of Xxxxxxx X.
Xxxxxxxxx, Managing Director, Assistant Secretary and General Counsel for the
Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Investment Adviser is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify does
not have a material adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the
Investment Adviser;
(ii) The Investment Adviser is duly registered with the Commission under
the Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the Rules and Regulations under such acts
from acting for the Fund under the Management Agreement as contemplated by
the Prospectus (and any amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and authority to enter
into this Agreement, the Management Agreement and the Sub-Advisory
Agreement and this Agreement, the Management Agreement and the
Sub-Advisory Agreement have been duly authorized, executed and delivered
by the Investment Adviser and each of the Management Agreement and the
Sub-Advisory Agreement is a valid, legal and binding agreement of the
Investment Adviser, enforceable against the Investment Adviser in
accordance with its terms, subject to the qualification that the
enforceability of the Investment Adviser's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory Agreement
complies in all material respects with all applicable provisions of the
Advisers Act, the 1940 Act and the Advisers Act Rules and Regulations and
the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Investment Adviser of this
Agreement, the Management Agreement or the Sub-Advisory Agreement nor the
consummation by the Investment Adviser of the transactions contemplated
hereunder or thereunder constitutes or will constitute a breach of or a
default under the Certificate of Incorporation or By-Laws of the
Investment Adviser or any material agreement, indenture, lease or other
instrument to which the Investment Adviser is a party or by which it or
any of its properties is bound that is known to such counsel after
reasonable inquiry, or will result in the creation or
23
imposition of any material lien, charge or encumbrance upon any property
or assets of the Investment Adviser, nor will any such action result in
any violation of any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Fund or any of its properties;
(vi) The description of the Investment Adviser and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the Act, the 1940 Act and the
Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable inquiry,
other than as described or contemplated in the Prospectus (and any
amendment or supplement thereto), there are no actions, suits or other
legal or governmental proceedings pending or threatened against the
Investment Adviser or to which the Investment Adviser or any of its
property is subject which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto);
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for the Investment
Adviser to carry on its business as contemplated in the Prospectus (and
any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative or
other governmental body, agency or official is required on the part of the
Investment Adviser for the performance of this Agreement, the Management
Agreement or the Sub-Advisory Agreement by the Investment Adviser or for
the consummation by the Investment Adviser of the transactions
contemplated hereby or thereby.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in its opinion, to determine independently and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including
review and discussion of the contents thereof and nothing has come to its
attention that has caused it to believe that the Registration Statement at
the time it became effective or the Prospectus, as of its date and as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
24
being understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the Delaware
General Corporation Law statute and the laws of the United States and may
rely upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by the Investment Adviser as to laws of any jurisdiction
other than the United States, the State of Illinois and the Delaware General
Corporation Law statute, provided that (X) each such local counsel is
acceptable to the Representatives, (Y) such reliance is expressly authorized
by each opinion so relied upon and a copy of each such opinion is delivered
to the Representatives and is, in form and substance, satisfactory to them
and their counsel and (Z) counsel shall state in his view that he believes
that he and the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of Xxxx X.
Berkshire, special counsel for the Subadviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Subadviser is a limited liability company duly formed and
validly existing in good standing under the laws of the State of
California with full company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or to qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of the Subadviser;
(ii) The Subadviser is duly registered with the Commission under the
Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the rules and regulations promulgated by
the Commission under such acts from acting for the Fund under the
Sub-Advisory Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Subadviser has company power and authority to enter into
this Agreement and the Sub-Advisory Agreement and this Agreement and the
Sub-Advisory Agreement have been duly authorized, executed and delivered
by the Subadviser and the Sub-Advisory Agreement is a valid, legal and
binding agreement of the Subadviser, enforceable against the Subadviser
in accordance with its terms, subject to the qualification that the
enforceability of the Subadviser's obligations thereunder may be limited
by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
25
(iv) The Sub-Advisory Agreement complies in all material respects with
all applicable provisions of the Advisers Act, the 1940 Act and the
Advisers Act Rules and Regulations and the 1940 Act Rules and
Regulations;
(v) Neither the execution and delivery by the Subadviser of this
Agreement or the Sub-Advisory Agreement nor the consummation by the
Subadviser of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Formation or limited liability company agreement of the
Subadviser or any material agreement, indenture, lease or other
instrument to which the Subadviser is a party or by which it or any of
its properties is bound that is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the
Subadviser, nor will any such action result in any violation of any
existing material law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to the Subadviser or any of its properties;
(vi) The description of the Subadviser and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the Act, the 1940 Act and the
Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable inquiry,
other than as described or contemplated in the Prospectus (and any
amendment or supplement thereto), there are no actions, suits or other
legal or governmental proceedings pending or threatened against the
Subadviser or to which the Subadviser or any of its property is subject
that are required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto);
(viii) The Subadviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for the Subadviser
to carry on its business as contemplated in the Prospectus (and any
amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Subadviser for the performance of this Agreement or the
Sub-Advisory Agreement by the Subadviser or for the consummation by the
Subadviser of the transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus,
26
including review and discussion of the contents thereof and nothing has
come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading or that any amendment or
supplement to the Prospectus, as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the United States and may rely
upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by the Subadviser as to laws of any jurisdiction other
than the United States, provided that (X) each such local counsel is
acceptable to the Representatives, (Y) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and
substance, satisfactory to them and their counsel and (Z) counsel shall
state in their view that they believe that they and the Underwriters are
justified in relying thereon.
(e) That you shall have received on the Closing Date, an opinion, dated
the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Underwriters may require
and the Fund, the Advisers and their respective counsels shall have furnished
to such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus or any sales
material shall have been issued and no proceedings for such purpose or for the
purpose of commencing an enforcement action against the Fund, the Advisers or,
with respect to the transactions contemplated by the Prospectus (or any
amendment or supplement thereto) and this Agreement, any Underwriter, may be
pending before or, to the knowledge of the Fund, the Advisers or any
Underwriter or in the reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the Closing Date
and that
27
any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Prospectus or otherwise) be
complied with to the satisfaction of the Representatives, (ii) there shall not
have been any change in the capital stock of the Fund nor any material
increase in debt of the Fund from that set forth in the Prospectus (and any
amendment or supplement thereto) and the Fund shall not have sustained any
material liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto); (iii)
since the date of the Prospectus there shall not have been any material
adverse change in the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Advisers;
(iv) the Fund and the Advisers must not have sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus (and any amendment
or supplement thereto); and (v) all of the representations and warranties of
the Fund and the Advisers contained in this Agreement shall be true and
correct on and as of the date hereof and as of the Closing Date as if made on
and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change or any development involving a prospective change
in or affecting the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Advisers
not contemplated by the Prospectus (and any amendment or supplement thereto),
which in your opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Securities or (ii) any event
or development relating to or involving the Fund, the Advisers or any officer
or trustee or director of the Fund or the Advisers which makes any statement
of a material fact made in the Prospectus (or any amendment or supplement
thereto) untrue or which, in the opinion of the Fund and its counsel or the
Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus (or any amendment or supplement thereto) in order to
state a material fact required by the Act, the 1940 Act, the Rules and
Regulations or any other law to be stated therein or necessary in order to
make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, if amending or
supplementing the Prospectus (or any amendment or supplement thereto) to
reflect such event or development would, in your opinion, as Representatives
of the several Underwriters, materially, adversely affect the market for the
Securities.
(i) That neither the Fund nor the Advisers shall have failed at or prior
to the Closing Date to have performed or complied with any of the agreements
herein contained and required to be performed or complied with by them at or
prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate, dated
such date, of the president, any managing director or any vice president and
of the controller, treasurer or assistant treasurer of each of the Fund, the
Investment Adviser and the Subadviser certifying that (i) the signers have
carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements thereto) and this Agreement (with respect to the
certificates of such officers of the Fund, the Investment Adviser and the
Subadviser), (ii) the representations and warranties of the Fund (with
28
respect to the certificates from such Fund officers) and the representations
of the Advisers (with respect to the certificates from such officers of the
Advisers) in this Agreement are true and correct on and as of the date of the
certificate as if made on such date, (iii) since the date of the Prospectus
(and any amendment or supplement thereto) there has not been any material
adverse change in the condition (financial or other), business, prospects
(other than as a result of a change in the financial markets generally),
properties, net assets or results of operations of the Fund (with respect to
the certificates from such Fund officers) or the Advisers (with respect to the
certificates from such officers of the Advisers), (iv) with respect to the
certificates from such Fund officers and the certificates from such officers
of the Investment Adviser and the Subadviser, to the knowledge of such
officers after reasonable investigation, no order suspending the effectiveness
of the Registration Statement or prohibiting the sale of any of the Securities
or 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 court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator or any
other governmental, regulatory, self-regulatory or administrative agency or
any official, (v) each of the Fund (with respect to certificates from such
Fund officers) and the Advisers (with respect to certificates from such
officers of the Advisers) has performed and complied with all agreements that
this Agreement requires it to perform by such Closing Date, (vi) neither the
Fund (with respect to the certificate from such officers of the Fund) nor the
Advisers (with respect to the certificate from such officers of the Advisers)
has sustained any material loss or interference with its business from any
court or from legislative or other governmental action, order or decree or
from any other occurrence not described in the Registration Statement and the
Prospectus and any amendment or supplement thereto and (vii) with respect to
the certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of the
Fund from that set forth in the Prospectus (and any amendment or supplement
thereto) and the Fund has not sustained any material liabilities or
obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) The Securities shall have been listed and admitted and authorized for
trading on the NYSE, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(l) That the Fund and the Advisers shall have furnished to you such
further certificates, documents and opinions of counsel as you shall
reasonably request (including certificates of officers of the Fund and the
Advisers).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by such
party to each Underwriter as to the statements made therein.
29
The several obligations of the Underwriters to purchase any Option
Securities hereunder are subject to (i) the accuracy of and compliance with
the representations, warranties and agreements of and by the Fund and the
Advisers contained herein on and as of the Option Closing Date, as though made
on any Option Closing Date, the date on which the Registration Statement
becomes or became effective and the date of the Prospectus (and any amendment
or supplement thereto) (ii) satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 7 except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (b), (c), (d), (e), (f), (j), (k) and this
paragraph shall be dated the Option Closing Date in question and the opinions
and letters called for by paragraphs (b), (c), (d), (e), (f), and this
paragraph shall be revised to reflect the sale of Option Securities, (iii) the
accuracy and completeness of all statements made by the Fund, the Advisers or
any of their officers in any certificate delivered to the Representatives or
their counsel pursuant to this Agreement and (iv) the absence of circumstances
on or prior to the Option Closing Date which would permit termination of this
Agreement pursuant to Section 11 hereof if they existed on or prior to the
Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Fund or the
Advisers to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Fund will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund, the Investment
--------------------------------
Adviser, and the Subadviser, jointly and severally, agree to indemnify and
hold harmless each of you and each other Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several
(including reasonable costs of investigation), to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, any
Preliminary Prospectus, any sales material (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, any Preliminary Prospectus or any sales material (or any amendment
or supplement to any of the foregoing), in light of the circumstances under
which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Fund will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Fund by or on
behalf of any Underwriter
30
through the Representatives specifically for inclusion therein; provided,
--------
further, that the foregoing indemnity with respect to the Registration
-------
Statement, the Prospectus or any Preliminary Prospectus (or any amendment or
supplement to any of the foregoing) shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, damage or
liability purchased Securities, if it is shown that a copy of the Prospectus,
as then amended or supplemented, which would have cured any defect giving rise
to such loss, claim, damage or liability was not sent or delivered to such
person by or on behalf of such Underwriter, if required by law to be so
delivered to, at or prior to the confirmation of the sale of such Securities
to such person and such Prospectus, amendments and supplements have been
provided by the Fund to the Underwriters in the requisite quantity and on a
timely basis to permit proper delivery. This indemnity agreement will be in
addition to any liability which the Fund, the Investment Adviser or the
Subadviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Fund and the Advisers, each of its directors, trustees, each
of its officers who signs the Registration Statement, and each person who
controls the Fund or the Advisers within the meaning of the Act or the
Exchange Act, to the same extent as the indemnity from the Fund, the
Investment Adviser and the Subadviser to each Underwriter as set forth in
Section 9(a) hereof, but only with respect to written information relating to
such Underwriter furnished to the Fund by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Fund
and the Advisers acknowledge that the names of the underwriters and number of
Shares listed opposite such names in the first paragraph under the caption
"Underwriting" in the Prospectus, as well as, under the same caption, the last
sentence of the second paragraph, the first sentence of the eleventh
paragraph, the first sentence of the thirteenth paragraph and the eighteenth
paragraph, constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory
-------- -------
to the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying
31
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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 unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then the Fund, the Advisers and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Fund, the Advisers and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Fund and the Advisers on the one hand and by the Underwriters
on the other from the offering of the Securities; provided, however, that in
-------- -------
no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Fund, the Advisers and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Fund and the Advisers on the one hand and of
the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Fund and the Advisers shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by the Fund and the Advisers, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information provided by the Fund or the Advisers on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Fund, the Advisers and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (f), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For
32
purposes of this Section 9, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Fund or the Advisers
within the meaning of either the Act or the Exchange Act, each officer of the
Fund and the Advisers who shall have signed the Registration Statement and each
director of the Fund and the Advisers shall have the same rights to contribution
as the Fund and the Advisers, subject in each case to the applicable terms and
conditions of this paragraph (f). The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to the respective number of
Firm Securities set forth opposite their names in Schedule I (or such numbers of
Firm Securities increased as set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an indemnified
party is entitled to indemnification or contribution under this Section 9
shall be paid by the indemnifying party to the indemnified party as such
losses, claims, damages or liabilities are incurred. The indemnity and
contribution agreements contained in this Section 9 and the representations
and warranties of the Fund and the Advisers set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Fund, the Advisers or their shareholders,
trustees, directors, managers, members or officers or any person controlling
the Fund or the Advisers (control to be determined within the meaning of the
Act or the Exchange Act), (ii) acceptance of any Securities and payment
therefor hereunder and (iii) any termination of this Agreement. A successor to
any Underwriter or to the Fund, the Advisers or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Advisers shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters
or in such other proportion as you may specify in accordance with the
Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Securities set forth
in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Fund. In the event of a default by any
Underwriter as set forth in this Section 10 which does not result in a
termination of this Agreement, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter
of its liability, if any, to the Fund and any nondefaulting Underwriter for
damages
33
occasioned by its default hereunder. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Securities which a defaulting Underwriter agreed, but failed or
refused, to purchase.
11. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, without liability on the part of
the Underwriters to the Fund or the Advisers, by notice given to the Fund or
the Advisers prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Fund's Common Shares shall have
been suspended by the Commission or the NYSE or trading in securities
generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on the NYSE, (ii) a commercial banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets in the United
States is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto). Notice of such termination may be given to the Fund or the Advisers
by telegram, facsimile or telephone and shall be subsequently confirmed by
letter.
12. Representations and Indemnities to Survive. The provisions of Sections
------------------------------------------
8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Miscellaneous. Except as otherwise provided in Sections 6, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Advisor,
c/o Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Berkshire, (b) if to the Subadviser, at the offices of
Symphony Asset Management, LLC at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000, Attention: Xxxx X. Xxxxxxx or (c) if to you, as Representatives of the
Underwriters, at the office of Citigroup Global Markets Inc. at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Advisers, their trustees, directors and officers
and the other controlling persons referred to in Section 9 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any
Securities in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the Secretary
of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of the Fund under this
Agreement are not binding upon such officer, any of the trustees or the
shareholders individually but are binding only upon the assets and property of
the Fund.
34
14. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
trustees, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"1940 Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A, as
the 1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
35
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to
the Securities that is first filed pursuant to Rule 497 after the
Execution Time or, if no filing pursuant to Rule 497 is required, shall
mean the form of final prospectus (including the statement of additional
information incorporated by reference therein) relating to the
Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN FLOATING RATE INCOME
OPPORTUNITY FUND
By:
------------------------------------
Name:
Title:
NUVEEN INSTITUTIONAL ADVISORY CORP.
By:
------------------------------------
Name:
Title:
SYMPHONY ASSET MANAGEMENT, LLC
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
-------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
Number of Firm Securities
Underwriters to be Purchased
------------ ---------------
Citigroup Global Markets Inc.
Nuveen Investments, LLC
Wachovia Capital Markets, LLC
Advest, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
KeyBanc Capital Markets, A Division of McDonald
Investments Inc.
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets Corporation
Xxxx Xxxx & Co., Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
SunTrust Capital Markets, Inc.
Wedbush Xxxxxx Securities Inc.
Total:
