______________ Shares
NUVEEN NEW YORK DIVIDEND ADVANTAGE MUNICIPAL FUND 2
Common Stock
UNDERWRITING AGREEMENT
March [27], 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
Deutsche Banc Alex. Xxxxx
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
First Union Securities, Inc.
Gruntal & Co., L.L.C.
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen New York Dividend Advantage Municipal Fund 2, a
Massachusetts business trust (the "Fund") and Nuveen Advisory Corp., a Delaware
corporation (the "Manager"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of ________
shares (the "Firm Shares") of its common shares of beneficial interest, $.01 par
value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional _______ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated February 20, 2001 an exchange traded fund custody agreement with
The Chase Manhattan Bank dated March __, 2001 and a shareholder transfer
agency agreement with The Chase Manhattan Bank dated March __, 2001 and
such agreements are herein referred to as the "Management Agreement", the
"Custodian Agreement" and the "Transfer Agency Agreement", respectively.
Collectively, the Management Agreement, the Custodian Agreement and the Transfer
Agency Agreement are herein referred to as the "Fund Agreements". This
Underwriting Agreement is herein referred to as the "Agreement".
1. Registration Statement and Prospectus. The Fund has prepared and filed
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with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act") and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File No. 333-53242) under the 1933 Act and
the 1940 Act and may pursuant to the Rules and Regulations prepare and file an
additional registration statement relating to a portion of the Shares pursuant
to Rule 462(b) of the 1933 Act Rules and Regulations (collectively, the
"registration statement"), including a prospectus (including any statement of
additional information) relating to the Shares and a notification of
registration of the Fund as an investment company under the 1940 Act on Form
N-8A (the "1940 Act Notification"). The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective under the
1933 Act or, if the registration statement became effective under the 1933 Act
prior to the execution of this Agreement, as amended or supplemented thereto,
prior to the execution of this Agreement and includes any information deemed to
be included by Rule 430A under the 1933 Act Rules and Regulations. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed under the 1933 Act and
must be declared effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Prospectus" as
used in this Agreement means the prospectus (including the statement of
additional information) in the form included in the Registration Statement or,
if the prospectus (including the statement of additional information) included
in the Registration Statement omits information in reliance on Rule 430A and
such information is included in a prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497(h) under
the 1933 Act Rules and Regulations, the term "Prospectus" as used in this
Agreement means the prospectus (including the statement of additional
information) in the form included in the Registration Statement as supplemented
by the addition of the information contained in the prospectus (including the
statement of additional information) filed with the Commission pursuant to Rule
497(h). The term "Prepricing Prospectus" as used in this Agreement means the
prospectus (including the statement of additional information) subject to
completion in the form included in the registration statement at the time of the
initial filing of the registration statement with the Commission and as such
prospectus (including the statement of additional information) shall have been
amended
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from time to time prior to the date of the Prospectus, together with any other
prospectus (including any other statement of additional information) relating to
the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such registration
statement, each amendment to such registration statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell, Purchase and Compensate. The Fund hereby agrees,
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subject to all the terms and conditions set forth herein, to issue and to sell
to each Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Manager herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Manager herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of ________ Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Manager have been advised by
------------------------
you that the Underwriters propose to make a public offering of their respective
portions of the Firm Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
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(a) Delivery to the Underwriters of and payment to the Fund for the Firm
Shares and compensation of the Underwriters with respect thereto shall be
made at the office of Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or through the facilities of the Depository Trust
Company or another mutually agreeable facility, at 9:00 A.M., New York City
time, on March [30], 2001 (the "Closing Date"). The place of closing for
the Firm Shares and the Closing Date may be varied by agreement between you
and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and compensation of
the Underwriters with respect thereto shall be made at the aforementioned
office of Xxxxxxx Xxxxx Barney Inc. at such time on such date (an "Option
Closing Date"), which may be the same as the Closing Date, but shall in no
event be earlier than the Closing Date nor earlier than two nor later than
three business days after the giving of the notice hereinafter referred to,
as shall be specified in a written notice from you on behalf of the
Underwriters to the Fund of the Underwriters' determination to purchase a
number, specified in said notice, of Additional Shares. The place of
closing for any Additional Shares and the Option Closing Date for such
Additional Shares may be varied by agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares shall
be registered in such names and in such denominations as you shall request
prior to 1:00 P.M., New York City time, (i) in respect of the Firm Shares,
on the second business day preceding the Closing Date and (ii) in respect
of Additional Shares, on the day of the giving of the written notice in
respect of such Additional Shares. Such certificates will be made available
to you in New York City for inspection and packaging not later than 9:00
A.M., New York City time, on the business day next preceding the Closing
Date or any Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, against payment of the purchase price
therefor in same-day funds to the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
--------------------------------------
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as practicable, but no later than
the second business day following the earlier of the date of
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the determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. If the Registration Statement has become effective and the
Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will confirm such advice
in writing (i) when the Registration Statement or such post-effective
amendment has become effective, (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or the certification permitted pursuant to Rule 497(j) of the
1933 Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, the
Prospectus or any Prepricing Prospectus or the Prospectus (or any amendment
or supplement to any of the foregoing) or for additional information, (ii)
of the issuance by the Commission, the National Association of Securities
Dealers, Inc. (the "NASD"), any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplated
initiation of any proceeding for any such purposes, (iii) of receipt by the
Fund, the Manager, any affiliate of the Fund or the Manager or any
representative or attorney of the Fund or the Manager of any other material
communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official relating to the Fund (if such communication relating
to the Fund is received by such person within three years after the date of
this Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material, adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Manager or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as herein defined) (or any amendment or supplement to any
of the foregoing) untrue or which requires the making of any additions to
or changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as herein defined) (or any amendment or
supplement to any of the foregoing) in order to
5
state a material fact required by the 1933 Act, the 1940 Act or the Rules
and Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as herein
defined) (or any amendment or supplement to any of the foregoing) to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
or order of any court or regulatory body. If at any time the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies of
the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from the
date of this Agreement and (y) the date on which the distribution of the
Shares is completed) and will also furnish to you, without charge, such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Shares is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the registration
statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund has
delivered to you, without charge, in such quantities as you have reasonably
requested, copies of each form of any Prepricing Prospectus. The Fund
consents to the use, in accordance with the provisions of the 1933 Act and
with the securities or Blue Sky laws of the
6
jurisdictions in which the Shares are offered by the several Underwriters
and by dealers, prior to the date of the Prospectus, of each Prepricing
Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement
7
shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
of the 1933 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) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Manager to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Manager,
jointly and severally, agree to reimburse the Representatives for all out-
of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Manager shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Manager has taken, nor will it 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.
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(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX") concurrently with the effectiveness of the
registration statement and to comply with the rules and regulations of such
exchange.
6. Representations and Warranties of the Fund and the Manager. The Fund and
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the Manager, jointly and severally, represent and warrant to each Underwriter
that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any post-
effective amendment thereto shall become effective and the Prospectus and
any amendment or supplement thereto when filed with the Commission under
Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and
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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.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or By-Laws
or in material violation of any material law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any material
decree of the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund or in breach or default in any
material respect in the performance of any obligation, agreement or
condition contained in any material bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution, delivery
or performance of this Agreement nor any of the Fund Agreements by the
Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing with the Commission, the NASD, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or By-
Laws of the Fund or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or materially violates or
will materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Fund
pursuant to the
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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.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (A)
there has been no material, adverse change in the condition (financial
or other), business, properties, net assets or results of operations of
the Fund or business prospects (other than as a result of a change in
the financial markets generally) of the Fund, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Fund which are material to the Fund other than
those in the ordinary course of its business as described in the
Prospectus (and any amendment or supplement thereto) and (C) there has
been no dividend or distribution of any kind declared, paid or made by
the Fund on any class of its common stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit the Statement of Assets and Liabilities 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 1933 Act, the 1940 Act and the Rules and
Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement
at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as
disclosed therein; and the other financial and statistical information
and data included in the Registration Statement or the Prospectus (or
any amendment or supplement thereto) are accurately derived from such
financial statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the Rules and Regulations, has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Shares as contemplated
by this Agreement.
(l) The execution and delivery of and the performance by the Fund
of its obligations under this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund and this Agreement and the
Fund Agreements have been duly executed and delivered by the Fund and
constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that
the enforceability of the Fund's obligations hereunder and thereunder
may be limited by bankruptcy, insolvency,
11
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or and any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them), the Fund has not incurred
any liability or obligation, direct or contingent or entered into any
transaction, not in the ordinary course of business, that is material
to the Fund and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the Fund
or any material, adverse change or any development involving or which
should reasonably be expected to involve a prospective material,
adverse change in the condition (financial or other), business,
properties, net assets or results of operations of the Fund.
(n) The Fund has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute to the public any offering material in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prepricing Prospectus included in
Pre-Effective Amendment No. 2 to the Registration Statement, the
Prospectus and the advertisements/sales literature filed by Nuveen
Investments with the NASD on February 26, 2001.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described in
the Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to
such permits and no event has occurred which allows or, after notice or
lapse of time, would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Fund
under any such permit, subject in each case to such qualification as
may be set forth in the Prospectus (and any amendment or supplement
thereto); and, except as described in the Prospectus (and any amendment
or supplement thereto), none of such permits contains any restriction
that is materially burdensome to the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization and with the investment policies and
restrictions of the Fund and the applicable requirements of the 1940
Act, the 1940 Act Rules and Regulations and the Internal Revenue Code
of 1986, as amended; (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
12
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee
of any patents, patent licenses, trademarks, service marks or trade
names which it does not own, possess or license.
(r) Except as stated in this Agreement and in the Prospectus (and
any amendment or supplement thereto), the Fund has not taken and will
not take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and the Fund is not
aware of any such action taken or to be taken by any affiliates of the
Fund.
(s) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940
Act Notification has been duly filed with the Commission and, at the
time of filing thereof and at the time of filing any amendment or
supplement thereto, conformed in all material respects with all
applicable provisions of the 1940 Act and the Rules and Regulations.
The Fund has not received any notice from the Commission pursuant to
Section 8(e) of the 1940 Act with respect to the 1940 Act Notification
or the Registration Statement (or any amendment or supplement to either
of them).
(t) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by the Fund or the Manager
for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and
if required to be filed with the NASD under the NASD"s conduct rules
were so filed. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act") and the rules and regulations adopted by
the Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because
of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
13
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of
the offering of the Shares in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended.
7. Representations and Warranties of the Manager. The Manager
---------------------------------------------
represents and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either
of them) and is duly registered and qualified to conduct business and
is in good standing in each jurisdiction or place where the nature of
its properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
would not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations of
the Manager.
(b) The Manager 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 Management Agreement for the Fund as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of,
and the performance by the Manager of its obligations under, this
Agreement and the Management Agreement have been duly and validly
authorized by the Manager and this Agreement and the Management
Agreement have been duly executed and delivered by the Manager and
constitute the valid and legally binding agreements of the Manager,
enforceable against the Manager 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 Manager'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) The Manager has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement, the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the
Management Agreement.
14
(e) The description of the Manager and its business, and the
statements attributable to the Manager, in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) complied
and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Manager, threatened against the Manager 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 result in any material, adverse
change in the condition (financial or other), business, properties, net
assets or results of operations of the Manager or that reasonably
should have a material, adverse effect on the ability of the Manager to
fulfill its obligations hereunder or under the Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (A)
there has been no material, adverse change in the condition (financial
or other), business, properties, net assets or results of operations or
business prospects of the Manager, whether or not arising from the
ordinary course of business and (B) there have been no transactions
entered into by the Manager which are material to the Manager other
than those in the ordinary course of its business as described in the
Prospectus.
(h) The Manager 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; the Manager 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 Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Advisers Act and the Advisers Act
Rules and Regulations.
(j) Neither the execution, delivery or performance of this
Agreement or the Management Agreement by the Manager, nor the
consummation by the Manager 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
15
any official (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in accordance
with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the Certificate of Incorporation or By-Laws of the
Manager or (B) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Manager 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 Manager 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 Manager 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 Manager is
subject.
(k) Except as stated in this Agreement and in the Prospectus (and
in any amendment or supplement thereto), the Manager has not taken and
will not take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and the Manager is not
aware of any such action taken or to be taken by any affiliates of the
Manager.
(l) In the event that the Fund or the Manager makes available any
promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site
or similar electronic means, the Manager will install and maintain
pre-qualification and password-protection or similar procedures which
are reasonably designed to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
8. Indemnification and Contribution.
--------------------------------
(a) The Fund and the Manager, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and
against any and all losses, claims, damages, liabilities and expenses,
joint or several (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the
Prospectus, any Prepricing Prospectus, any sales material (or any
amendment or supplement to any of the foregoing) or arising out of or
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are
based upon any
16
untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and
in conformity with the information relating to such Underwriters
furnished in writing to the Fund by or on behalf of any Underwriter
through you expressly for use in connection therewith; provided,
however, that the foregoing indemnity with respect to the Registration
Statement, the Prospectus or any Prepricing Prospectuses (or any
amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person asserting any loss,
claim, damage, liability or expense purchased Shares, if it is shown
that a copy of the Prospectus, as then amended or supplemented, which
would have cured any defect giving rise to such loss, claim, damage,
liability or expense was not sent or delivered to such person by or on
behalf of such Underwriter, if required by law to be so delivered, at
or prior to the confirmation of the sale of such Shares to such person
and such Prospectus, amendments and supplements had been provided by
the Fund to the Underwriters in the requisite quantity and on a timely
basis to permit proper delivery. The foregoing indemnity agreement
shall be in addition to any liability which the Fund or the Manager may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Fund or the Manager, such
Underwriter or such controlling person shall promptly notify the Fund
or the Manager and the Fund or the Manager shall assume the defense
thereof, including the employment of counsel and the payment of all
fees and expenses. Such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless (i) the Fund or the Manager
have agreed in writing to pay such fees and expenses, (ii) the Fund and
the Manager have failed within a reasonable time to assume the defense
and employ counsel or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Fund or the Manager and
such Underwriter or such controlling person shall have been advised by
its counsel that representation of such indemnified party and the Fund
or the Manager by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and
the Manager shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the Fund and the
Manager shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any
local counsel if there is any action, suit or proceeding in more than
one jurisdiction) at any time for all such Underwriters and controlling
persons not having actual or potential differing interests with you or
among themselves, which firm shall be designated in
17
writing by Xxxxxxx Xxxxx Xxxxxx Inc. and that, subject to the
requirements of 1940 Act Release No. 11330, all such fees and expenses
shall be reimbursed promptly as they are incurred. The Fund and the
Manager shall not be liable for any settlement of any such action, suit
or proceeding effected without the written consent of the Fund or the
Manager, but if settled with such written consent or if there be a
final judgment for the plaintiff in any such action, suit or
proceeding, the Fund and the Manager agree to indemnify and hold
harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss,
liability, damage or expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Manager, their trustees,
directors, any officers of the Fund who sign the Registration Statement
and any person who controls the Fund or the Manager within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity from the Fund and the Manager to
each Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement or the
Prospectus (or any amendment or supplement or to either of them). If
any action, suit or proceeding shall be brought against the Fund or the
Manager, any of their trustees, directors, any such officer or any such
controlling person, based on the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) and in
respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights
and duties given to the Fund by paragraph (b) above (except that if the
Fund or the Manager shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter"s expense)
and the Fund and the Manager, their trustees, directors, any such
officer and any such controlling person shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and of the
Underwriters on the other hand in connection with the
18
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the
Manager on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Fund as set forth in the table on
the cover page of the Prospectus bear to the total payments received by
the Underwriters with respect to the Firm Shares as set forth in the
table on the cover page of the Prospectus. The relative fault of the
Fund and the Manager on the one hand (treated jointly for this purpose
as one person) and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Fund and the Manager on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Fund, the Manager and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters"
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective number of Firm Shares set forth opposite
their names in Schedule I (or such numbers of Firm Shares increased as
set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability from claimants on claims that are the subject matter
of such action, suit or proceeding.
19
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or
expenses are incurred. The indemnity and contribution agreements
contained in this Section 8 and the representations and warranties of
the Fund and the Manager 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 Manager or their trustees,
directors or officers or any person controlling the Fund or the
Manager, (ii) acceptance of any Shares and payment therefor hereunder
and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Manager or their trustees, directors or
officers or any person controlling any Underwriter, the Fund or the
Manager shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase any Shares hereunder are subject to, in the good
faith judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Manager or any of their
officers in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Registration Statement or such post-effective
amendment shall have become effective not later than 5:30 p.m., New
York City time, on the date hereof or at such later date and time as
shall be consented to in writing by you and all filings, if any,
required by Rules 497 and 430A under the 1933 Act Rules and Regulations
shall have been timely made; no order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Fund, the Manager 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, special counsel for the Fund and Manager, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Fund is a business trust duly organized, validly
existing and in good standing under the laws of The Commonwealth
of Massachusetts with full
20
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 the shares of capital stock of the Fund outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable, except that,
as described in the Prospectus under the heading, "Certain
Provisions in the Declaration of Trust," shareholders of the Fund
may under certain circumstances be held personally liable for its
obligations;
(iv) The Shares have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully
paid and nonassessable not subject to any preemptive rights that
entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Fund, except that, as described in the
Prospectus under the heading, "Certain Provisions in the
Declaration of Trust," shareholders of the Fund may under certain
circumstances be held personally liable for its obligations;
(v) The form of certificates for the Shares is in due and
proper form and complies with the requirements of all applicable
laws and the AMEX;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver
the Shares to the Underwriters as provided herein and this
Agreement and each of the Fund Agreements have been duly
authorized, executed and delivered by the Fund and assuming due
authorization, execution and delivery by the other parties
thereto, constitute the valid, legal and binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
except as enforcement of rights to indemnity hereunder may be
limited by Federal or state securities laws or principles of
public policy and subject to the qualification that the
enforceability
21
of the Fund's obligations hereunder and thereunder may be limited
by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors" rights generally and by
general equitable principles, whether enforcement is considered in
a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Manager, enforceable against the Manager in
accordance with its terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state securities
laws or principles of public policy and subject to the
qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at
law;
(viii) The Fund Agreements comply in all material respects
with all applicable provisions of the 1933 Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act Rules
and Regulations;
(ix) The Fund is not in violation of its Declaration of
Trust or By-Laws or to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance
of any material obligation, agreement or condition contained in
any bond, debenture, note or other evidence of indebtedness,
except as may be disclosed in the Prospectus (and any amendment or
supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any
official is required on the part of the Fund (except as have been
obtained under the 1933 Act and the 1934 Act or such as may be
required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares) for the valid issuance
and sale of the Shares to the Underwriters as contemplated by this
Agreement, performance of the Fund Agreements or this Agreement by
the Fund, the consummation by the Fund of the transactions
contemplated thereby or hereby or the adoption of the Fund"s
Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund"s Dividend
Reinvestment Plan violates the Declaration of Trust or By-Laws of
the Fund or any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of
its properties is bound that is an exhibit to
22
the Registration Statement or that is known to such counsel after
reasonable inquiry or, to the best of such counsel's knowledge
after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such counsel"s
knowledge after reasonable inquiry, will any such action result in
any violation of any existing material law, regulation, ruling
(assuming compliance with all applicable state securities and Blue
Sky laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Fund or any of
its properties, except that, in the published opinion of the
Commission, the indemnification provisions in this Agreement and
the Fund Agreements, insofar as they relate to indemnification for
liabilities arising under the 1933 Act, are against public policy
as expressed in the 1933 Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and,
to the best knowledge of such counsel after reasonable inquiry, no
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
before or contemplated by the Commission; and any filing of the
Prospectus and any amendments or supplements thereto required
pursuant to Rule 497 of the 1933 Act Rules and Regulations prior
to the date of such opinion have been made in accordance with Rule
497;
(xiii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, non-diversified management
investment company and all action has been taken by the Fund as
required by the 1933 Act and the 1940 Act and the Rules and
Regulations in connection with the issuance and sale of the Shares
to make the public offering and consummate the sale of the Shares
as contemplated by this Agreement;
(xiv) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them
through the date of the opinion) under the caption "Tax Matters"
have been reviewed by such counsel and to the extent they describe
or summarize tax laws, doctrines or practices of the United
States, present a fair and accurate description or summary thereof
as of the date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement to either of them
through the date of the opinion), insofar as they are descriptions
of contracts, agreements or other legal documents or refer to
statements of law or legal conclusions, are accurate and present
fairly the information required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act,
23
the 1940 Act and the Rules and Regulations (except that no opinion
need be expressed as to the financial statements and the notes
thereto and the schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the
Prospectus (or any amendment or supplement thereto through the
date of the opinion), there are no actions, suits or other legal
or governmental proceedings pending or expressly threatened
against the Fund and (B) there are no material agreements,
contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them
through the date of the opinion) or to be filed as an exhibit to
the Registration Statement that are not described or filed as
required, as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to
the Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-
regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the American Stock Exchange and
the Fund"s registration statement on Form 8-A under the 1934 Act
is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such
counsel has participated in the preparation of the Registration Statement
and the Prospectus, including review and discussion of the contents
thereof, and nothing has come to the attention of such counsel that has
caused it to believe that the Registration Statement, at the time the
Registration Statement became effective or the Prospectus, as of its date
and as of the Closing Date, as the case may be, or the Option 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 or the
Option Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express
no view with respect to the financial statements and the notes thereto
and the schedules and other financial and statistical data included in
the Registration Statement or the Prospectus).
24
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of the State of New York,
The Commonwealth of Massachusetts and the United States and may rely, as
to matters involving the application of laws of The Commonwealth of
Massachusetts, to the extent they deem proper and specified in such
opinion, upon the opinion of Xxxxxxx Xxxx LLP or other counsel of good
standing whom they believe to be reliable and who are satisfactory to the
Representatives; provided that (X) such reliance is expressly authorized
by the opinion so relied upon and a copy of each such opinion is
delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (Y) Xxxx, Xxxx & Xxxxx states
in their opinion that they believe that they and the Underwriters are
justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxxxxx, Vice President, Assistant Secretary and General
Counsel for the Manager, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, to the effect that:
(i) The Manager is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any amendment
or supplement to either of them) and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or
qualification, except where the failure so to register or to
qualify does not have a material, adverse effect on the condition
(financial or other), business, properties, net assets or results
of operations of the Manager;
(ii) The Manager 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 Manager has corporate power and authority to enter
into this Agreement and the Management Agreement and this
Agreement and the Management Agreement have been duly authorized,
executed and delivered by the Manager and the Management Agreement
is a valid, legal and binding agreement of the Manager,
enforceable against the Manager in accordance with its terms,
except as enforcement of rights to indemnity and contribution
hereunder may be limited by Federal or state securities laws or
principles of public policy and subject to the qualification that
the enforceability of the Manager'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;
25
(iv) The Management 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 Manager of
this Agreement or the Management Agreement nor the consummation by
the Manager 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 Manager
or any material agreement, indenture, lease or other instrument to
which the Manager 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 Manager, 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 Manager and its business in the
Prospectus (and any amendment or supplement thereto) complies in
all material respects with all requirements of the 1933 Act, the
1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions,
suits or other legal or governmental proceedings pending or
threatened against the Manager or to which the Manager or any of
its property is subject which are required to be described in the
Registration Statement or Prospectus (or any amendment or
supplement to either of them);
(viii) The Manager owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for
the Manager 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 Manager for the performance of this
Agreement or the Management Agreement by the Manager or for the
consummation by the Manager 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
26
in the Registration Statement, such counsel has participated in
the preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe
that the Registration Statement at the time it became effective or
the Prospectus, as of its date and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that
any amendment or supplement to the Prospectus, as of the Closing
Date or the Option Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect
to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
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 Manager as to laws of any jurisdiction other than the
United States, the State of Illinois and the Delaware General
Corporation Law statute, provided that (X) each such local counsel
is acceptable to the Representatives, (Y) such reliance is
expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is, in
form and substance satisfactory to them and their counsel and (Z)
counsel shall state in their view that they believe that they and
the Underwriters are justified in relying thereon.
(d) (i) You shall have received on the Closing Date an opinion of
Xxxxxxx & Xxxxxx, LLP, special New York counsel to the Fund, dated
the Closing Date and addressed to you, as Representatives of the
several Underwriters" to the effect that:
The statements contained in the Prospectus under the
headings "Risks - Concentration Risk" and "Tax Matters - New York
Tax Matters", in Appendix D to the statement of additional
information under the headings "Factors Pertaining to New York"
and "New York Tax Matters", to the extent that such statements
constitute matters of law or legal conclusions, provide a fair and
accurate summary of such law or conclusions. Such statements are
based on current law and special counsel's understanding of the
Fund's proposed operations, as disclosed in the Prospectus.
27
Such counsel shall also state that although special counsel does
not pass upon or assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
the Prospectus (other than to the extent set forth above), and has not
made any independent check or verification thereof, no facts have come to
the attention of such special counsel which would lead it to believe
that the material contained in the Prospectus under the headings "Risks -
Concentration Risk" and "Tax Matters - New York Tax Matters", in Appendix
D to the statement of additional information under the headings "Factors
Pertaining to New York" and "New York Tax Matters", as of their
respective dates or the Closing Date or the Option Closing Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that any statement contained in any
amendment or supplement to the Prospectus or statement of additional
information under such headings, as of its respective date, and as of the
Closing Date or the Option Closing Date, contained any untrue statement
of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such special counsel may rely as to matters
of fact, to the extent such special counsel deems proper, on certificates
of responsible officers of the Fund and of the Manager, and of public
officials.
(ii) You shall have received on the Closing Date a comfort letter,
substantially in the forms heretofore approved by you, from Xxxxxxx and
Xxxxxx, special counsel to the Fund, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, with respect to
the taxable equivalent yield tables in Appendix B to the statement of
additional information under the heading "New York".
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to such
matters as the Underwriters may require and the Fund, the Manager 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 the Registration Statement or prohibiting or suspending
the use of the Prospectus (or any amendment or supplement thereto) or
any Prepricing Prospectus or any sales material shall have been issued
and no proceedings for such purpose or for the purpose of commencing an
enforcement action against the Fund, the Manager 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 Manager 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
28
Closing Date and that any request for additional information on the
part of the Commission (to be included in the Registration Statement,
the Prospectus or otherwise) be complied with to the satisfaction of
the Representatives, (ii) there shall not have been any change in the
capital stock of the Fund nor any 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
Manager; (iv) the Fund and the Manager must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any
other occurrence not described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them); and (v)
all of the representations and warranties of the Fund and the Manager
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 Manager not contemplated by the Prospectus (and any
amendment or supplement thereto), which in your opinion, as
Representatives of the several Underwriters, would materially,
adversely affect the market for the Shares or (ii)any event or
development relating to or involving the Fund, the Manager or any
officer or trustee or director of the Fund or the Manager which makes
any statement of a material fact made in the Prospectus (or any
amendment or supplement thereto) untrue or which, in the opinion of the
Fund and its counsel or the Underwriters and their counsel, requires
the making of any addition to or change in the Prospectus (or any
amendment or supplement thereto) in order to state a material fact
required by the 1933 Act, the 1940 Act, the Rules and Regulations or
any other law to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, if amending
or supplementing the Prospectus (or any amendment or supplement
thereto) to reflect such event or development would, in your opinion,
as Representatives of the several Underwriters, materially, adversely
affect the market for the Shares.
(i) That neither the Fund nor the Manager shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied
with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a
certificate, dated such date, of the president or any vice president
and of the controller or treasurer of each of the Fund and the Manager
certifying that (i) the signers have carefully examined the
Registration Statement, the Prospectus (and any amendments or
supplements to either of
29
them) and this Agreement, (ii) the representations and warranties of the
Fund (with respect to the certificates from such Fund officers) and the
representations of the Manager (with respect to the certificates from such
officers of the Manager) 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 Manager (with respect to the certificates from such
officers of the Manager), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Manager (with respect to the
certificates from such officers of the Manager) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Manager (with respect to
certificates from such officers of the Manager) has performed and complied
with all agreements that this Agreement require it to perform by such
Closing Date, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Manager (with respect to the certificate
from such officers of the Manager) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) That the Fund and the Manager 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
Manager).
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
Manager and delivered to you, as Representatives of the Underwriters or to
Underwriters" counsel, shall be deemed a representation and warranty by the
Fund or the Manager to each Underwriter as to the statements made therein.
30
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund and the Manager contained herein
on and as of the Option Closing Date as though made on any Option Closing
Date, (ii) satisfaction on and as of any Option Closing Date of the
conditions set forth in this Section 9 except that, if any Option Closing
Date is other than the Closing Date, the certificates, opinions and letters
referred to in paragraphs (b), (c), (d), (e), (f), (j), (k) and this
paragraph shall be dated the Option Closing Date in question and the
opinions and letters called for by paragraphs (b), (c), (d) and (e) shall
be revised to reflect the sale of Additional Shares and (iii) the absence
of circumstances on or prior to the Option Closing Date which would permit
termination of this Agreement pursuant to Section 11 hereof if they existed
on or prior to the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the aggregate number of
Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all non-
defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Xxxxxxx Xxxxx Xxxxxx Master Agreement Among
Underwriters, to purchase Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares and arrangements satisfactory
to you and the Fund for the purchase of such Firm Shares by one or more non-
defaulting Underwriters or other party or parties approved by you and the Fund
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Fund. In
any such case which does not result in termination of this Agreement, either you
or the Fund shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect to any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all
31
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Firm Shares which a
defaulting Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund or the Manager by notice to the Fund or the Manager if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in the Shares or securities generally on the NYSE, AMEX, Nasdaq National
Market or the Nasdaq Stock Market shall have been suspended or materially
limited, (ii) additional material governmental restrictions not in force on the
date of this Agreement have been imposed upon trading in securities generally or
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities or (iii) any outbreak or
material escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions, occurs, the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Fund or the Manager by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses and
--------
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund"s independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including
postage, air freight and the cost of counting and packaging) of copies of the
Prospectus, the Prepricing Prospectus, any sales
32
material and all amendments or supplements to the Prospectus as may be requested
for use in connection with the offering and sale of the Shares, (g) the printing
(or reproduction) and delivery of this Agreement, any dealer agreements, the
preliminary and supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and delivered in
connection with the offering of the Shares, (h) the filing fees and the fees and
expenses of counsel for the Underwriters in connection with any filings required
to be made with the NASD and incurred with respect to the review of the offering
of the Shares by the NASD, (i) the registration of the Shares under the 1934 Act
and the listing of the Shares on the AMEX, and (j) an amount equal to (A)
$20,000 plus (B) $.0025 per Share for each Share in excess of 2,000,000 sold
pursuant to this Agreement, payable no later than 45 days from the date of this
Agreement to the Underwriters in partial reimbursement of their expenses (but
not including reimbursement for the cost of one tombstone advertisement in a
newspaper that is one-quarter of a newspaper page or less in size) in connection
with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will pay the
costs and expenses of the Fund set forth above in this Section 12 (a) through
(i), and reimbursements of Underwriter expenses in connection with the offering
shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The statements set forth in
-----------------------------------------
the last sentence of the last paragraph of the front cover page in the
Prospectus, as well as, under the caption "Underwriting" in the Prospectus, the
names of the underwriters and numbers of Shares listed opposite such names in
the first paragraph, the last sentence of the second paragraph, the first
sentence of the tenth paragraph, the first sentence of the twelfth paragraph and
the sixteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Manager, c/o Nuveen
Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
X. Berkshire or (b) if to you, as Representatives of the Underwriters, at the
office of Xxxxxxx Xxxxx Barney Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Manager, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund
33
by the vice-president of the Fund in such capacity and not individually and the
obligations of this Agreement are not binding upon such officer, any of the
trustees or the shareholders individually but are binding only upon the assets
and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
34
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN NEW YORK DIVIDEND
ADVANTAGE MUNICIPAL FUND 2
By:___________________________
Title: Vice President
NUVEEN ADVISORY CORP.
By:_____________________________
Title: Vice President
35
Confirmed as of the date first above written on behalf of themselves and the
other several Underwriters named in Schedule I hereto.
By: XXXXXXX XXXXX XXXXXX INC.
NUVEEN INVESTMENTS
DEUTSCHE BANC ALEX. XXXXX
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
UBS WARBURG LLC
ADVEST, INC.
XXXXXXXXXX & CO. INC.
FIRST UNION SECURITIES, INC.
GRUNTAL & CO., L.L.C.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX BARNEY INC.
By:___________________________________
Title: Director
36
SCHEDULE I
Name of Underwriters Number of Common Shares
-------------------- -----------------------
Xxxxxxx Xxxxx Xxxxxx Inc.......................................................
Nuveen Investments.............................................................
Deutsche Banc Alex. Xxxxx......................................................
X.X. Xxxxxxx & Sons, Inc.......................................................
Prudential Securities Incorporated.............................................
UBS Warburg LLC................................................................
Advest, Inc....................................................................
Xxxxxxxxxx & Co. Inc...........................................................
First Union Securities, Inc....................................................
Gruntal & Co., L.L.C...........................................................
