Exhibit h.1
NUVEEN EQUITY PREMIUM INCOME FUND
__________ COMMON SHARES
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
New York, New York
October [26], 2004
Citigroup Global Markets Inc.
Nuveen Investments, LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Nuveen Equity Premium Income Fund, a
Massachusetts business trust (the "Fund"), Nuveen Institutional Advisory Corp.,
a Delaware corporation (the "Investment Adviser"), and Gateway Investment
Advisers, L.P., a Delaware limited partnership (the "Subadviser" and the
Subadviser together with the Investment Adviser, each an "Adviser" and
collectively the "Advisers"), address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters __________ shares (the "Firm Securities")
of its common shares of beneficial interest, par value $.01 per share (the
"Common Shares"). The Fund also proposes to sell to the Underwriters, upon the
terms and conditions set forth herein, up to an additional _________ Common
Shares (the "Option Securities") to cover over-allotments. The Firm Securities
and the Option Securities are hereinafter collectively referred to as the
"Securities." Unless otherwise stated, the term "you" as used herein means
Citigroup Global Markets Inc. individually on its own behalf and on behalf of
the other Representatives. Certain terms used herein are defined in Section 18
hereof.
The Fund and the Advisers wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Securities by the
Underwriters.
The Fund has entered into an Investment Management Agreement
with the Investment Adviser dated as of _____________ __, ____, a Custodian
Agreement with State Street Bank and Trust Company dated as of August 19, 2002,
effective as of October __, 2004 and a Shareholder Transfer Agency and Service
Agreement with State Street Bank and Trust Company dated as of October 7, 2002,
effective as of October __, 2004, and such agreements
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are herein referred to as the "Management Agreement," the "Custodian Agreement"
and the "Transfer Agency Agreement," respectively. The Investment Adviser has
entered into an investment sub-advisory agreement with the Subadviser dated as
of ________ __, ____ and such agreement is herein referred to as the
"Sub-Advisory Agreement." The Investment Adviser has entered into a License
Agreement with Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
a New York Corporation dated as of , , and such agreement is herein
referenced to as the "License Agreement." Collectively, (i) the Management
Agreement, the Custodian Agreement, the Transfer Agency Agreement and the
License Agreement are herein referred to as the "Fund Agreements." In addition,
the Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment
Plan") pursuant to which holders of Common Shares shall have their dividends
automatically reinvested in additional Common Shares of the Fund unless they
elect to receive such dividends in cash.
1. Representations and Warranties of the Fund and the
Advisers. The Fund, the Investment Adviser and the Subadviser, jointly and
severally, represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-118393 and 811-21619) on Form
N-2, including a related preliminary prospectus (including the statement
of additional information incorporated by reference therein), for
registration under the Act and the 1940 Act of the offering and sale of
the Securities. The Fund may have filed one or more amendments thereto,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), each of which
has previously been furnished to you. The Fund will next file with the
Commission one of the following: either (1) prior to the Effective Date
of such registration statement, a further amendment to such registration
statement (including the form of final prospectus (including the
statement of additional information incorporated by reference therein))
or (2) after the Effective Date of such registration statement, a final
prospectus (including the statement of additional information
incorporated by reference therein) in accordance with Rules 430A and
497. In the case of clause (2), the Fund has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the 1940 Act and the Rules and Regulations to be included in such
registration statement and the Prospectus. As filed, such amendment and
form of final prospectus (including the statement of additional
information incorporated by reference therein) (in the case of clause
(1) above), or such final prospectus (including the statement of
additional information incorporated by reference therein) (in the case
of clause (2) above), shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Fund has advised you, prior to the Execution Time, will be included
or made therein.
(b) Each Preliminary Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, complied when so filed in all material respects
with the provisions of the Act, the 1940 Act and the Rules and
Regulations.
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(c) The Registration Statement, in the form in which it
became or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the
Prospectus and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the Act Rules and Regulations and the 1940
Act Notification when originally filed with the Commission and any
amendment or supplement thereto when filed with the Commission complied
or will comply in all material respects with the provisions of the Act,
the 1940 Act and the Rules and Regulations and did not or will not at
any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading; except that
this representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Fund in
writing by or on behalf of any Underwriter through you expressly for use
therein.
(d) All the outstanding Common Shares of the Fund have been
duly authorized and validly issued, are fully paid and, except as
described in the Registration Statement, nonassessable and are free of
any preemptive or similar rights; the Securities have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and, except as described in the Registration
Statement, nonassessable and free of any preemptive or similar rights
and the capital stock of the Fund conforms to the description thereof in
the Registration Statement and the Prospectus (and any amendment or
supplement to either of them).
(e) The Fund has been duly formed and is validly existing in
good standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so
to register or to qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net assets or
results of operations of the Fund. The Fund has no subsidiaries.
(f) There are no legal or governmental proceedings pending
or, to the knowledge of the Fund, threatened, against the Fund or to
which the Fund or any of its properties is subject, whether or not
arising from transactions in the ordinary course of business, that (i)
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are
not described as required by the Act, the 1940 Act or the Rules and
Regulations, (ii) are not described in the Prospectus and could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (iii) are not described in the
Prospectus and could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund.
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(g) There are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
to either of them) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act, the
1940 Act or the Rules and Regulations.
(h) The Fund is not in violation of its Declaration of Trust
or By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund, including, without limitation, the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, or of any material decree of the Commission, the
NASD, any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund or in breach or default in any material
respect in the performance of any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument
to which the Fund is a party or by which it or any of its properties may
be bound.
(i) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement nor any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or other order of or registration or filing
which has not yet been obtained or made with the Commission, the NASD,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in accordance
with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of the
Declaration of Trust or By-Laws of the Fund or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default
under, any material agreement, indenture, lease or other instrument to
which the Fund is a party or by which it or any of its properties may be
bound or materially violates or will materially violate any material
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Fund or any of its properties or will result in
the creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Fund pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Fund is subject.
(j) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (i)
there has been no material adverse change in the condition (financial or
other), business, properties, net assets or results of operations of
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the Fund or business prospects (other than as a result of a change in
the financial markets generally) of the Fund, whether or not arising in
the ordinary course of business, (ii) there have been no transactions
entered into by the Fund which are material to the Fund other than those
in the ordinary course of its business as described in the Prospectus
(and any amendment or supplement thereto) and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Fund
on any class of its common stock.
(k) The accountants, [Ernst & Young LLP], who have audited
or shall audit at or prior to the Closing Date the Statement of Assets
and Liabilities and the related Statement of Operations both included in
the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), are an independent public accounting firm
as required by the Act, the 1940 Act and the Rules and Regulations.
(l) The financial statements, together with related
schedules and notes, included in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them) present
fairly the financial position of the Fund on the basis stated in the
Registration Statement and the Prospectus at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved except as disclosed therein; and the other financial
and statistical information and data included in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) are
accurately derived from such financial statements and the books and
records of the Fund.
(m) The Fund, subject to the Registration Statement having
been declared effective and the filing of the Prospectus under Rule 497
under the Act Rules and Regulations, has taken all required action under
the Act, the 1940 Act and the Rules and Regulations to make the public
offering and consummate the sale of the Securities as contemplated by
this Agreement.
(n) The execution and delivery of, and the performance by
the Fund of its obligations under, this Agreement and the Fund
Agreements have been duly and validly authorized by the Fund and this
Agreement and the Fund Agreements have been duly executed and delivered
by the Fund and constitute the valid and legally binding agreements of
the Fund, enforceable against the Fund in accordance with their terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and subject to the qualification
that the enforceability of the Fund's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(o) Except as disclosed in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is given
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), the Fund has not incurred any liability
or obligation, direct or contingent, that is material to the Fund and
there has not been any change in the capital stock or material increase
in the short-term debt or long-term debt of the Fund.
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(p) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Securities, will not distribute to the public in either printed or
electronic form any offering material in connection with the offering
and sale of the Securities other than the Registration Statement, the
Preliminary Prospectuses included in each of Pre-Effective Amendment No.
1 to the Registration Statement, Pre-Effective Amendment No. 2 to the
Registration Statement , Pre-Effective Amendment No. 3 to the
Registration Statement, Pre-Effective Amendment No. 4 to the
Registration Statement and Pre-Effective Amendment No. 5 to the
Registration Statement, the Prospectus and the advertisements/sales
literature filed by Nuveen Investments, LLC with the NASD on
____________ __, 2004.
(q) The Fund has such licenses, permits, and authorizations
of governmental or regulatory authorities ("permits") as are necessary
to own its property and to conduct its business in the manner described
in the Prospectus (and any amendment or supplement thereto); the Fund
has fulfilled and performed all its material obligations with respect to
such permits and no event has occurred which allows or, after notice or
lapse of time, would allow, revocation or termination thereof or results
in any other material impairment of the rights of the Fund under any
such permit, subject in each case to such qualification as may be set
forth in the Prospectus (and any amendment or supplement thereto); and,
except as described in the Prospectus (and any amendment or supplement
thereto), none of such permits contains any restriction that is
materially burdensome to the Fund.
(r) The Fund maintains and will maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's
general or specific authorization and with the investment policies and
restrictions of the Fund and the applicable requirements of the 1940
Act, the 1940 Act Rules and Regulations and the Internal Revenue Code of
1986, as amended (the "Code"); (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles, to calculate net asset
value, to maintain accountability for assets and to maintain material
compliance with the books and records requirements under the 1940 Act
and the 1940 Act Rules and Regulations; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded account for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(s) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service marks or
trade names which it does not own, possess or license.
(t) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Fund has not taken and
will not take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or
7
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.
(u) The Fund is duly registered under the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission and, at the time of
filing thereof and at the time of filing any amendment or supplement
thereto, conformed in all material respects with all applicable
provisions of the 1940 Act and the 1940 Act Rules and Regulations. The
Fund has not received any notice from the Commission pursuant to Section
8(e) of the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement (or any amendment or supplement to either of
them).
(v) All advertising, sales literature or other promotional
material (including "prospectus wrappers" and "broker kits"), whether in
printed or electronic form, authorized in writing by or prepared by the
Fund or the Advisers for use in connection with the offering and sale of
the Securities (collectively, "sales material") complied and comply in
all material respects with the applicable requirements of the Act, the
Act Rules and Regulations and the rules and interpretations of the NASD
and if required to be filed with the NASD under the NASD's conduct rules
were so filed. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(w) This Agreement and each of the Fund Agreements complies
in all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Investment Advisers Act of 1940,
as amended (the "Advisers Act"), and the rules and regulations adopted
by the Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(x) No holder of any security of the Fund has any right to
require registration of Common Shares or any other security of the Fund
because of the filing of the registration statement or consummation of
the transactions contemplated by this Agreement.
(y) The Securities have been duly approved for listing upon
notice of issuance on the New York Stock Exchange (the "NYSE") and the
Fund's registration statement on Form 8-A, under the Exchange Act, has
become effective.
(z) The Fund intends to direct the investment of the
proceeds of the offering of the Securities in such a manner as to comply
with the requirements of Subchapter M of the Code.
(aa) The Fund's directors and officers errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund is
in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy
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or fidelity bond as to which any insurance company is denying liability
or defending under a reservation of rights clause; the Fund has not been
refused any insurance coverage sought or applied for; and the Fund has
no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Fund, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto)
(bb) Except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in the
Fund are outstanding.
(cc) Except as disclosed in the Prospectus, no trustee of the
Fund is an "interested person" (as defined in the 0000 Xxx) of the Fund
or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter listed in Schedule I hereto.
(dd) Neither the rules of the New York Stock Exchange nor the
laws of the Commonwealth of Massachusetts require that the Common Shares
be represented by certificates.
2. Representations and Warranties of the Advisers. Each of
the Investment Adviser and the Subadviser, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation, limited liability company
or limited liability partnership duly organized and validly existing in
good standing under the laws of its jurisdiction of incorporation or
formation, with full corporate, company or partnership power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing in
each jurisdiction or place where the nature of its properties or conduct
of its business requires such registration or qualification, except
where the failure so to register or to qualify would not have a material
adverse effect on the condition (financial or other), business,
properties, net assets or results of operations of such Adviser.
(b) Such Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Fund Agreements to which it is a
party or the Sub-Advisory Agreement to which it is a party as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
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(c) Such Adviser has full power and authority to enter into
this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement to which it is a party, the execution and
delivery of, and the performance by such Adviser of its obligations
under, this Agreement, the Fund Agreements to which it is a party and
the Sub-Advisory Agreement to which it is a party have been duly and
validly authorized by such Adviser; and this Agreement, the Fund
Agreements to which it is a party and the Sub-Advisory Agreement to
which it is a party have been duly executed and delivered by such
Adviser and constitute the valid and legally binding agreements of such
Adviser, enforceable against such Adviser in accordance with their
terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the Fund
Agreements to which it is a party and the Sub-Advisory Agreement to
which it is a party.
(e) Such Adviser is not in violation of its certificate or
articles of incorporation, by-laws, certificate of formation, limited
liability company agreement, limited liability partnership agreement or
other organizational documents or in violation of the applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith to which it is subject,
in default under any material agreement, indenture or instrument or in
breach or violation of any judgment, decree, order, rule or regulation
of any court or governmental or self-regulatory agency or body except
where such violation or breach would not have a material adverse effect
on the condition (financial or other), business, prospects, properties,
net assets or results of operations of the such Adviser or on the
ability of the such Adviser to perform its obligations under this
Agreement, the Management Agreement to which it is a party or the
Sub-Advisory Agreement to which it is a party.
(f) The description of such Adviser and its business, and
the statements attributable to such Adviser, in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
in each case insofar as such information is set forth in the
Registration Statement or the Prospectus) complied and comply in all
material respects with the provisions of the Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made)
not misleading.
(g) There are no legal or governmental proceedings pending
or, to the knowledge of such Adviser, threatened against such Adviser or
to which any of its properties is subject, that are required to be
described in the Registration Statement or the
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Prospectus (or any amendment or supplement to either of them) but are
not described as required or that reasonably should be expected to
result in any material adverse change in the condition (financial or
other), business, properties, net assets or results of operations of
such Adviser or that reasonably should have a material adverse effect on
the ability of such Adviser to fulfill its obligations hereunder or
under the Fund Agreements to which it is a party or under the
Sub-Advisory Agreement to which it is a party.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (i)
there has been no material adverse change in the condition (financial or
other), business, properties, net assets or results of operations or
business prospects of such Adviser, whether or not arising from the
ordinary course of business and (ii) there have been no transactions
entered into by such Adviser which are material to such Adviser other
than those in the ordinary course of its business as described in the
Prospectus.
(i) Such Adviser has such licenses, permits and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and to conduct its business in the
manner described in the Prospectus; such Adviser has fulfilled and
performed all its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other
material impairment of the rights of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such
Adviser is a party and the Sub-Advisory Agreement to which it is a party
comply in all material respects with all applicable provisions of the
1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(k) Neither the execution, delivery or performance of this
Agreement or the Fund Agreements by such Adviser which is a party
thereto or the Sub-Advisory Agreement by such Adviser which is a party
thereto, nor the consummation by such Adviser of the transactions
contemplated hereby or thereby (A) requires any consent, approval,
authorization or other order of or registration or filing with the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official (except compliance with the securities or Blue Sky laws of
various jurisdictions which have been or will be effected in accordance
with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the certificate or articles of incorporation, by-laws,
certificate of formation, limited liability company agreement, limited
liability partnership agreement or other organizational documents of
such Adviser or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which such Adviser is a party or
by which it or any of its properties may be bound or materially violates
or will materially violate any material statute, law, regulation or
filing or judgment, injunction, order or
11
decree applicable to such Adviser or any of its properties or will
result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of such Adviser pursuant to the
terms of any agreement or instrument to which it is a party or by which
it may be bound or to which any of the property or assets of such
Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus
(and in any amendment or supplement thereto), such Adviser has not taken
and nor will it take, directly or indirectly, any action designed to or
which should reasonably be expected to cause or result in or which will
constitute, stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and such Adviser is not
aware of any such action taken or to be taken by any affiliates of such
Adviser.
(m) In the event that the Fund or such Adviser makes
available any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, in each case under its
control or at its direction, such Adviser will install and maintain
pre-qualification and password-protection or similar procedures which
are reasonably designed to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers and
registered representatives thereof.
3. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Fund agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Fund, at a purchase price of
$______ per share, the amount of the Firm Securities set forth opposite such
Underwriter's name in Schedule I hereto (or such number of Firm Securities
increased as set forth in Section 10 hereof).
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
__________ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Firm Securities. Said option may be exercised
only to cover over-allotments in the sale of the Firm Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time prior to 9:00 P.M., New York City time on or before the 45th
day after the date of the Prospectus (or if such 45th day shall be a Saturday or
a Sunday or a holiday, on the next business day thereafter when the NYSE is open
for trading) upon written or telegraphic notice by the Representatives to the
Fund setting forth the number of shares of the Option Securities as to which the
several Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Firm Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
4. Delivery and Payment. (a) Delivery of and payment for
the Firm Securities shall be made at the office of Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities
of the Depository Trust Company or
12
another mutually agreeable facility, at 9:00 A.M., New York City time, on
October [29], 2004 (the "Closing Date"). The place of closing for the Firm
Securities and the Closing Date may be varied by agreement between you and the
Fund.
(b) Delivery of and payment for the Option Securities (if
the option provided for in Section 3(b) hereof shall have been exercised) shall
be made at the aforementioned office of Citigroup Global Markets Inc., or
through the facilities of the Depository Trust Company or another mutually
agreeable facility, at such time on such date (an "Option Closing Date"), which
may not be the same as the Closing Date, but shall in no event be earlier than
the Closing Date nor earlier than two nor later than three business days after
the giving of the notice hereinafter referred to, as shall be specified in a
written notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in said notice, of
Option Securities. The place of closing for any Option Securities and the Option
Closing Date for such Option Securities may be varied by agreement between you
and the Fund.
(c) The Firm Securities and any Option Securities shall be
registered in such names and in such denominations as you shall request prior to
1:00 P.M., New York City time, (i) in respect of the Firm Securities, on the
second business day preceding the Closing Date and (ii) in respect of Option
Securities, on the day of the giving of the written notice in respect of such
Option Securities. The Firm Securities and any Option Securities to be purchased
hereunder shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, through the facilities of the Depository Trust Company
or another mutually agreeable facility, against payment of the purchase price
therefor in immediately available funds to the order of the Fund.
5. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public upon
the terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund,
the Investment Adviser and the Subadviser, jointly and severally, agree with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective under the Act
before the offering of the Firm Securities may commence, the Fund will
use its reasonable best efforts to cause the Registration Statement or
such post-effective amendment to become effective under the Act as soon
as possible. If the Registration Statement has become effective and the
Prospectus contained therein omits certain information at the time of
effectiveness pursuant to Rule 430A of the Act Rules and Regulations,
the Fund will file a Prospectus including such information pursuant to
Rule 497(h) of the Act Rules and Regulations, as promptly as
practicable, but no later than the second business day following the
earlier of the date of the determination of the offering price of the
Securities or the date the Prospectus is first used after the effective
date of the Registration Statement. If the Registration Statement has
become effective and the Prospectus contained therein does not so omit
such information, the Fund will file a Prospectus pursuant to Rule
497(c) or (j) of the Act Rules and Regulations as promptly as
practicable, but no later than the fifth business day following the date
of the later of the
13
effective date of the Registration Statement or the commencement of the
public offering of the Securities after the effective date of the
Registration Statement. The Fund will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when the
Registration Statement or such post-effective amendment has become
effective or (ii) when the Prospectus has been timely filed pursuant to
Rule 497(c) or Rule 497(h) of the Act Rules and Regulations or the
certification permitted pursuant to Rule 497(j) of the Act Rules and
Regulations has been timely filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration
Statement, any Preliminary Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official of any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending
the use of the Prospectus, any Preliminary Prospectus or any sales
material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation
or contemplated initiation of any proceeding for any such purposes,
(iii) of receipt by the Fund, the Advisers, any affiliate of the Fund or
the Advisers or any representative or attorney of the Fund or the
Advisers of any other material communication from the Commission, the
NASD, any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating to the
Fund (if such communication relating to the Fund is received by such
person within three years after the date of this Agreement), the
Registration Statement, the 1940 Act Notification, the Prospectus, any
Preliminary Prospectus, any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing), this Agreement or
any of the Fund Agreements and (iv) within the period of time referred
to in paragraph (f) below, of any material adverse change in the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund or the Advisers or of the
happening of any event which makes any statement of a material fact made
in the Registration Statement, the Prospectus, any Preliminary
Prospectus or any sales material (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) untrue or which
requires the making of any additions to or changes in the Registration
Statement, the Prospectus, any Preliminary Prospectus or any sales
materials (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) in order to state a material fact required by the
Act, the 1940 Act or the Rules and Regulations to be stated therein or
necessary in order to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made)
not misleading or of the necessity to amend or supplement the
Registration Statement, the Prospectus, any Preliminary Prospectus or
any sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) to comply with the Act, the 1940
Act, the Rules and Regulations or any other law or order of any court or
regulatory body. If at any time the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any
14
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 Preliminary Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement
to any of the foregoing) or suspending the qualification of the
Securities for offering or sale in any jurisdiction, the Fund will use
its reasonable best efforts to obtain the withdrawal of such order at
the earliest possible time.
(c) The Fund will furnish to you, without charge, three
signed copies of the registration statement and the 1940 Act
Notification as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits
thereto (except any post-effective amendment required by Rule 8b-16 of
the 1940 Act Rules and Regulations which is filed with the Commission
after the later of (x) one year from the date of this Agreement and (y)
the date on which the distribution of the Securities is completed) and
will also furnish to you, without charge, such number of conformed
copies of the registration statement as originally filed and of each
amendment thereto (except any post-effective amendment required by Rule
8b-16 of the 1940 Act Rules and Regulations which is filed with the
Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Securities
is completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus, any Preliminary Prospectus or any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) of which you shall not previously have been advised or to
which you shall reasonably object within a reasonable time after being
so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required to be delivered in connection
with sales by any Underwriter or dealer, file any information, documents
or reports pursuant to the Exchange Act, without delivering a copy of
such information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement,
the Fund has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of any Preliminary
Prospectus. The Fund consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Preliminary Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time, for such period
as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales of
Securities by any Underwriter or dealer, the Fund will expeditiously
deliver to each Underwriter and each dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Fund consents to the use of the
Prospectus (and of any amendments or supplements thereto) in
15
accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Securities are offered
by the several Underwriters and by all dealers to whom Securities may be
sold, both in connection with the offering or sale of the Securities and
for such period of time thereafter as the Prospectus is required by law
to be delivered in connection with sales of Securities by any
Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading or if it is necessary to supplement or amend
the Prospectus to comply with the Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will
forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate amendment or supplement thereto
and will expeditiously furnish to the Underwriters and dealers, without
charge, such number of copies thereof as they shall reasonably request.
In the event that the Prospectus is to be amended or supplemented, the
Fund, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Fund will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of
the Securities for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as
you may designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the Fund
be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(h) The Fund will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act and
Rule 158 of the Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in
paragraph 6 of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will
furnish to you (i) as soon as available, a copy of each report of the
Fund mailed to shareholders or filed with the Commission and (ii) from
time to time such other information concerning the Fund as you may
reasonably request.
(k) The Fund agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Fund
of its obligations hereunder: (i) the preparation, printing or
reproduction, filing (including, without limitation, the
16
filing fees prescribed by the Act, the 1940 Act and the Rules and
Regulations) and distribution of the Registration Statement (including
exhibits thereto), the Prospectus, each Preliminary Prospectus and the
1940 Act Notification and all amendments or supplements to any of them,
(ii) printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the Registration Statement, the Prospectus, each Preliminary
Prospectus, any sales material and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the
offering and sale of the Securities, (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp taxes and transfer agent and registrar
fees payable in connection with the original issuance and sale of such
Securities, (iv) the registrations or qualifications of the Securities
for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 6(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction and delivery of
the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification), (v) the transportation and other
expenses incurred by or on behalf of Fund representatives in connection
with presentations to prospective purchasers of the Securities, (vi) the
fees and expenses of the Fund's independent accountants, counsel for the
Fund and of the transfer agent, (vii) the expenses of delivery to the
Underwriters and dealers (including postage, air freight and the cost of
counting and packaging) of copies of the Prospectus, the Preliminary
Prospectus, any sales material and all amendments or supplements to the
Prospectus as may be requested for use in connection with the offering
and sale of the Securities, (viii) the printing (or reproduction) and
delivery of this Agreement, any dealer agreements, the preliminary and
supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and delivered in
connection with the offering of the Securities, (ix) the filing fees and
the fees and expenses of counsel for the Underwriters in connection with
any filings required to be made with the NASD and incurred with respect
to the review of the offering of the Securities by the NASD, (x) the
registration of the Securities under the Exchange Act and the listing of
the Securities on the NYSE and (xi) an amount equal to (A) $20,000 plus
(B) $0.0033 per Security for each Security in excess of 2,000,000 sold
pursuant to this Agreement, payable no later than 45 days from the date
of this Agreement to the Underwriters in partial reimbursement of their
expenses (but not including reimbursement for the cost of one tombstone
advertisement in a newspaper that is one quarter of a newspaper page or
less in size) in connection with the offering. Notwithstanding the
foregoing, in the event that the sale of the Firm Securities is not
consummated pursuant to Section 3 hereof, the Advisers will pay the
costs and expenses of the Fund set forth above in clauses (i) through
(x) of this Section 6(k), and reimbursements of Underwriter expenses in
connection with the offering shall be made in accordance with Section 8
hereof.
(l) The Fund will direct the investment of the net proceeds
of the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(m) The Fund will file the requisite copies of the
Prospectus with the Commission in a timely fashion pursuant to Rule
497(c) or Rule 497(h) of the Act Rules
17
and Regulations, whichever is applicable or, if applicable, will file in
a timely fashion the certification permitted by Rule 497(j) of the Act
Rules and Regulations and will advise you of the time and manner of such
filing.
(n) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund in effect on the date hereof,
neither the Fund nor the Advisers will sell, contract to sell or
otherwise dispose of or hedge, any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or
grant any options or warrants to purchase Common Shares, for a period of
180 days after the date of the Prospectus, without the prior written
consent of Citigroup Global Markets Inc.
(o) Except as stated in this Agreement and in the
Prospectus, neither the Fund nor the Advisers have taken, nor will any
of them take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Shares.
(p) The Fund will use its reasonable best efforts to have
the Common Shares listed, subject to notice of issuance, on the NYSE
concurrently with the effectiveness of the Registration Statement and to
comply with the rules and regulations of such exchange.
(q) The Investment Adviser hereby agrees and covenants to
waive receipt of a portion of its fees or other payments from the Fund
to which would otherwise be entitled in the amounts and for the time
periods set forth in the Prospectus.
7. Conditions to the Obligations of the Underwriters. The
several obligations of the Underwriters to purchase any Securities hereunder are
subject to the accuracy of and compliance with the representations, warranties
and agreements of and by the Fund and the Advisers contained herein on and as of
the date hereof, the date on which the Registration Statement becomes or became
effective, the date of the Prospectus (and of any amendment or supplement
thereto), the Closing Date and, with respect to any Option Securities, any
Option Closing Date; to the accuracy and completeness of all statements made by
the Fund, the Advisers or any of their officers in any certificate delivered to
the Representatives or their counsel pursuant to this Agreement and to the
following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective before the
offering of the Securities may commence, the Registration Statement or
such post-effective amendment shall have become effective not later than
5:30 p.m., New York City time, on the date hereof or at such later date
and time as shall be consented to in writing by you and all filings, if
any, required by Rules 497 and 430A under the Act Rules and Regulations
shall have been timely made; no order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Fund, the Advisers or any Underwriter, threatened by the Commission and
any request of the Commission for additional information (to be included
in the Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
18
(b) You shall have received on the Closing Date an opinion
of Xxxx, Xxxx & Xxxxx LLC, special counsel for the Fund and the
Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Fund is a business trust duly established,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts with full power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto through the
date of the opinion) and is duly registered and qualified to
conduct its business and is in good standing in each
jurisdiction where the nature of its properties or the conduct
of its business requires such registration or qualification,
except where the failure so to register or to qualify does not
have a material adverse effect on the condition (financial or
other), business, properties, net assets or results of
operations of the Fund;
(ii) The authorized and outstanding capital stock of
the Fund is as set forth in the Registration Statement and
Prospectus (or any amendment or supplement thereto through the
date of the opinion); and the description of the authorized
capital stock of the Fund contained in the Prospectus (or any
amendment or supplement thereto through the date of the opinion)
under the caption "Description of Shares" conforms in all
material respects as to legal matters to the terms thereof
contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Securities have been
duly authorized and validly issued and are fully paid and
nonassessable, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(iv) The Securities have been duly authorized and,
when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and not subject to any
preemptive rights that entitle or will entitle any person to
acquire any Securities upon the issuance thereof by the Fund,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders
of the Fund may under certain circumstances be held personally
liable for its obligations;
(v) The Fund has the power and authority to enter
into this Agreement and the Fund Agreements and to issue, sell
and deliver the Securities to the Underwriters as provided
herein and this Agreement and each of the Fund Agreements have
been duly authorized, executed and delivered by the Fund;
19
(vi) Assuming due authorization, execution and
delivery by the other parties thereto and that the performance
of the Fund Agreements by such other parties will not violate
law, agreements to which such other parties or their properties
are subject or orders applicable to such other parties, the Fund
Agreements constitute the valid, legal and binding agreements of
the Fund, enforceable against the Fund in accordance with their
terms, subject to the qualification that the enforceability of
the Fund's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equitable principles, whether enforcement is considered in a
proceeding in equity or at law;
(vii) The Fund Agreements comply in all material
respects with all applicable provisions of the Act, the 1940
Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations;
(viii) The Fund is not in violation of its Declaration
of Trust or By-Laws or, to the best knowledge of such counsel
after reasonable inquiry, is not in material default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in the Prospectus (and
any amendment or supplement thereto);
(ix) No consent, approval, authorization or order of
or registration or filing with the Commission, the NASD, any
state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental body, agency
or regulatory, self-regulatory or administrative agency or any
official is required on the part of the Fund (except as have
been obtained under the Act and the Exchange Act or such as may
be required under state securities or Blue Sky laws governing
the purchase and distribution of the Securities) for the valid
issuance and sale of the Securities to the Underwriters as
contemplated by this Agreement, performance of the Fund
Agreements or this Agreement by the Fund, the consummation by
the Fund of the transactions contemplated thereby or hereby or
the adoption of the Fund's Dividend Reinvestment Plan;
(x) Neither the offer, sale or delivery of the
Securities, the execution, delivery or performance of this
Agreement or the Fund Agreements, compliance by the Fund with
the provisions hereof or thereof, consummation by the Fund of
the transactions contemplated hereby or thereby nor the adoption
of the Fund's Dividend Reinvestment Plan violates the
Declaration of Trust or By-Laws of the Fund or any material
agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties is bound
that is an exhibit to the Registration Statement or that is
known to such counsel after reasonable inquiry or, to the best
of such counsel's knowledge after reasonable inquiry, will
result in the creation or imposition of any material lien,
charge or encumbrance upon any property or assets of the Fund,
nor, to the best of such counsel's knowledge after reasonable
inquiry, will any such action result in any violation of any
existing material law, regulation, ruling (assuming compliance
with all
20
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 Act, are against public policy
as expressed in the Act and therefore unenforceable;
(xi) The Registration Statement and all
post-effective amendments, if any, have become effective under
the Act and, to the best knowledge of such counsel after
reasonable inquiry, no order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending before or contemplated by the
Commission; and any filing of the Prospectus and any amendments
or supplements thereto required pursuant to Rule 497 of the Act
Rules and Regulations prior to the date of such opinion has been
made in accordance with Rule 497;
(xii) The Fund is duly registered with the Commission
under the 1940 Act as a closed-end, diversified management
investment company and all action has been taken by the Fund as
required by the Act and the 1940 Act and the Rules and
Regulations in connection with the issuance and sale of the
Securities to make the public offering and consummate the sale
of the Securities as contemplated by this Agreement;
(xiii) The statements made in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto through the date of the opinion) under the caption "Tax
Matters" and "Certain Provisions in the Declaration of Trust"
have been reviewed by such counsel and to the extent they
describe or summarize tax laws, doctrines or practices of the
United States, legal matters, agreements, documents or
proceedings discussed therein present a fair and accurate
description or summary thereof as of the date of the opinion;
(xiv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement thereto through the
date of the opinion), insofar as they are descriptions of
contracts, agreements or other legal documents or refer to
statements of law or legal conclusions, are accurate and present
fairly the information required to be shown;
(xv) The Registration Statement and the Prospectus
(and any amendment or supplement thereto through the date of the
opinion) comply as to form in all material respects with the
requirements of the Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and
other financial and statistical data included therein);
(xvi) To the best knowledge of such counsel after
reasonable inquiry, (A) other than as described or contemplated
in the Prospectus (or any amendment or supplement thereto
through the date of the opinion), there are no actions, suits
21
or other legal or governmental proceedings pending or expressly
threatened against the Fund (through the date of the opinion)
and (B) there are no material agreements, contracts, indentures,
leases or other instruments that are required to be described in
the Registration Statement or the Prospectus (or any amendment
or supplement thereto through the date of the opinion) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xvii) To the best knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund; and
(xviii) The Securities are duly authorized for listing,
subject to official notice of issuance, on the NYSE and the
Fund's registration statement on Form 8-A under the Exchange Act
is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of
the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made) not misleading
or that any amendment or supplement to the Prospectus, as of the Closing
Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no view with respect
to the financial statements and the notes thereto and the schedules and
other financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion
to matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and
to the extent specified in such opinion, such counsel may rely, as to
matters involving the application of laws of The Commonwealth of
Massachusetts, upon the opinion of Xxxxxxx XxXxxxxxx LLP or other
counsel of good standing whom they believe to be reliable and who are
satisfactory to the Representatives; provided that (X) such reliance is
expressly authorized by the opinion so relied upon and a copy of each
such opinion is delivered to the Representatives and is, in form and
substance, satisfactory to them and their counsel and
22
(Y) Xxxx, Xxxx & Xxxxx LLC states in their opinion that they believe
that they and the Underwriters are justified in relying thereon.
References to the Prospectus in this paragraph (b) shall also include
any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion
of Xxxxxxx X. Xxxxxxxxx, Managing Director, Assistant Secretary and
General Counsel for the Investment Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Investment Adviser is a corporation duly
incorporated and validly existing in good standing under the
laws of the State of Delaware with full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) and
is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Investment Adviser;
(ii) The Investment Adviser is duly registered with
the Commission under the Advisers Act as an investment adviser
and is not prohibited by the Advisers Act, the 1940 Act or the
Rules and Regulations under such acts from acting for the Fund
under the Management Agreement as contemplated by the Prospectus
(and any amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and
authority to enter into this Agreement, the Management Agreement
and the Sub-Advisory Agreement and this Agreement, the
Management Agreement and the Sub-Advisory Agreement have been
duly authorized, executed and delivered by the Investment
Adviser and each of the Management Agreement and the
Sub-Advisory Agreement is a valid, legal and binding agreement
of the Investment Adviser, enforceable against the Investment
Adviser in accordance with its terms, subject to the
qualification that the enforceability of the Investment
Adviser's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equitable principles;
(iv) Each of the Management Agreement and the
Sub-Advisory Agreement complies in all material respects with
all applicable provisions of the Advisers Act, the 1940 Act and
the Advisers Act Rules and Regulations and the 1940 Act Rules
and Regulations;
(v) Neither the execution and delivery by the
Investment Adviser of this Agreement, the Management Agreement
or the Sub-Advisory Agreement nor the consummation by the
Investment Adviser of the transactions contemplated hereunder or
thereunder constitutes or will constitute a breach of or a
default
23
under the Certificate of Incorporation or By-Laws of the
Investment Adviser or any material agreement, indenture, lease
or other instrument to which the Investment Adviser is a party
or by which it or any of its properties is bound that is known
to such counsel after reasonable inquiry, or will result in the
creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Investment
Adviser, nor will any such action result in any violation of any
existing material law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel
after reasonable inquiry, applicable to the Fund or any of its
properties;
(vi) The description of the Investment Adviser and
its business in the Prospectus (and any amendment or supplement
thereto) complies in all material respects with all requirements
of the Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in
the Prospectus (and any amendment or supplement thereto), there
are no actions, suits or other legal or governmental proceedings
pending or threatened against the Investment Adviser or to which
the Investment Adviser or any of its property is subject which
are required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto);
(viii) The Investment Adviser owns, possesses or has
obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations as
are necessary for the Investment Adviser to carry on its
business as contemplated in the Prospectus (and any amendment or
supplement thereto); and
(ix) No material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Investment Adviser for
the performance of this Agreement, the Management Agreement or
the Sub-Advisory Agreement by the Investment Adviser or for the
consummation by the Investment Adviser of the transactions
contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the
24
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in, or
omitted from, the Registration Statement or the Prospectus (or any
amendment or supplement thereto)).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of Illinois,
the Delaware General Corporation Law statute and the laws of the United
States and may rely upon an opinion or opinions, each dated the Closing
Date, of other counsel retained by the Investment Adviser as to laws of
any jurisdiction other than the United States, the State of Illinois and
the Delaware General Corporation Law statute, provided that (X) each
such local counsel is acceptable to the Representatives, (Y) such
reliance is expressly authorized by each opinion so relied upon and a
copy of each such opinion is delivered to the Representatives and is, in
form and substance, satisfactory to them and their counsel and (Z)
counsel shall state in his view that he believes that he and the
Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion
of Xxxxxxx Xxxx & Xxxxx LLP, special counsel for the Subadviser, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Subadviser is a limited partnership duly
formed and validly existing in good standing under the laws of
the State of Delaware with full company power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Subadviser;
(ii) The Subadviser is duly registered with the
Commission under the Advisers Act as an investment adviser and
is not prohibited by the Advisers Act, the 1940 Act or the rules
and regulations promulgated by the Commission under such acts
from acting for the Fund under the Sub-Advisory Agreement as
contemplated by the Prospectus (and any amendment or supplement
thereto);
(iii) The Subadviser has company power and authority
to enter into this Agreement and the Sub-Advisory Agreement and
this Agreement and the Sub-Advisory Agreement have been duly
authorized, executed and delivered by the Subadviser and the
Sub-Advisory Agreement is a valid, legal and binding agreement
of the Subadviser, enforceable against the Subadviser in
accordance with its terms, subject to the qualification that the
enforceability of the
25
Subadviser's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by
general equitable principles;
(iv) The Sub-Advisory Agreement complies in all
material respects with all applicable provisions of the Advisers
Act, the 1940 Act and the Advisers Act Rules and Regulations and
the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the
Subadviser of this Agreement or the Sub-Advisory Agreement nor
the consummation by the Subadviser of the transactions
contemplated hereunder or thereunder constitutes or will
constitute a breach of or a default under the [Certificate of
Limited Partnership] or limited partnership agreement of the
Subadviser or any material agreement, indenture, lease or other
instrument to which the Subadviser is a party or by which it or
any of its properties is bound that is known to such counsel
after reasonable inquiry, or will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Subadviser, nor will any such action
result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction, order
or decree known to such counsel after reasonable inquiry,
applicable to the Subadviser or any of its properties;
(vi) The description of the Subadviser and its
business in the Prospectus (and any amendment or supplement
thereto) complies in all material respects with all requirements
of the Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in
the Prospectus (and any amendment or supplement thereto), there
are no actions, suits or other legal or governmental proceedings
pending or threatened against the Subadviser or to which the
Subadviser or any of its property is subject that are required
to be described in the Registration Statement or Prospectus (or
any amendment or supplement thereto);
(viii) The Subadviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations as are
necessary for the Subadviser to carry on its business as
contemplated in the Prospectus (and any amendment or supplement
thereto); and
(ix) No material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Subadviser for the
performance of this Agreement or the Sub-Advisory Agreement by
the Subadviser or for the consummation by the Subadviser of the
transactions contemplated hereby or thereby.
26
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the
Prospectus, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading or that any amendment or
supplement to the Prospectus, as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of Delaware
and the United States and may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by the Subadviser as
to laws of any jurisdiction other than the United States, provided that
(X) each such local counsel is acceptable to the Representatives, (Y)
such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to the Representatives and is,
in form and substance, satisfactory to them and their counsel and (Z)
counsel shall state in their view that they believe that they and the
Underwriters are justified in relying thereon.
(e) That you shall have received on the Closing Date, an
opinion, dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may require and the Fund, the Advisers and
their respective counsels shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters.
(f) That you shall have received letters addressed to you,
as Representatives of the several Underwriters, and dated the date
hereof and the Closing Date from [Ernst & Young LLP] independent
certified public accountants, substantially in the forms heretofore
approved by you.
(g) (i) No order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus or any sales material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an
enforcement
27
action against the Fund, the Advisers or, with respect to the
transactions contemplated by the Prospectus (or any amendment or
supplement thereto) and this Agreement, any Underwriter, may be pending
before or, to the knowledge of the Fund, the Advisers or any Underwriter
or in the reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the Closing
Date and that any request for additional information on the part of the
Commission (to be included in the Registration Statement, the Prospectus
or otherwise) be complied with to the satisfaction of the
Representatives, (ii) there shall not have been any change in the
capital stock of the Fund nor any material increase in debt of the Fund
from that set forth in the Prospectus (and any amendment or supplement
thereto) and the Fund shall not have sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto); (iii) since the
date of the Prospectus there shall not have been any material adverse
change in the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the
Advisers; (iv) the Fund and the Advisers must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any
other occurrence not described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto); and (v) all of the
representations and warranties of the Fund and the Advisers contained in
this Agreement shall be true and correct on and as of the date hereof
and as of the Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change or any development
involving a prospective change in or affecting the condition (financial
or other), business, prospects, properties, net assets or results of
operations of the Fund or the Advisers not contemplated by the
Prospectus (and any amendment or supplement thereto), which in your
opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Securities or (ii) any
event or development relating to or involving the Fund, the Advisers or
any officer or trustee or director of the Fund or the Advisers which
makes any statement of a material fact made in the Prospectus (or any
amendment or supplement thereto) untrue or which, in the opinion of the
Fund and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus (or any amendment
or supplement thereto) in order to state a material fact required by the
Act, the 1940 Act, the Rules and Regulations or any other law to be
stated therein or necessary in order to make the statements therein (in
the case of a prospectus, in light of the circumstances under which they
were made) not misleading, if amending or supplementing the Prospectus
(or any amendment or supplement thereto) to reflect such event or
development would, in your opinion, as Representatives of the several
Underwriters, materially, adversely affect the market for the
Securities.
(i) That neither the Fund nor the Advisers shall have failed
at or prior to the Closing Date to have performed or complied with any
of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a
certificate, dated such date, of the president, any managing director or
any vice president and of the controller,
28
treasurer or assistant treasurer of each of the Fund, the Investment
Adviser and the Subadviser certifying that (i) the signers have
carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements thereto) and this Agreement (with respect to
the certificates of such officers of the Fund, the Investment Adviser
and the Subadviser), (ii) the representations and warranties of the Fund
(with respect to the certificates from such Fund officers) and the
representations of the Advisers (with respect to the certificates from
such officers of the Advisers) in this Agreement are true and correct on
and as of the date of the certificate as if made on such date, (iii)
since the date of the Prospectus (and any amendment or supplement
thereto) there has not been any material adverse change in the condition
(financial or other), business, prospects (other than as a result of a
change in the financial markets generally), properties, net assets or
results of operations of the Fund (with respect to the certificates from
such Fund officers) or the Advisers (with respect to the certificates
from such officers of the Advisers), (iv) with respect to the
certificates from such Fund officers and the certificates from such
officers of the Investment Adviser and the Subadviser, to the knowledge
of such officers after reasonable investigation, no order suspending the
effectiveness of the Registration Statement or prohibiting the sale of
any of the Securities or having a material adverse effect on the Fund
has been issued and no proceedings for any such purpose are pending
before or threatened by the Commission or any court or other regulatory
body, the NASD, any state securities commission, any national securities
exchange, any arbitrator or any other governmental, regulatory,
self-regulatory or administrative agency or any official, (v) each of
the Fund (with respect to certificates from such Fund officers) and the
Advisers (with respect to certificates from such officers of the
Advisers) has performed and complied with all agreements that this
Agreement requires it to perform by such Closing Date, (vi) neither the
Fund (with respect to the certificate from such officers of the Fund)
nor the Advisers (with respect to the certificate from such officers of
the Advisers) has sustained any material loss or interference with its
business from any court or from legislative or other governmental
action, order or decree or from any other occurrence not described in
the Registration Statement and the Prospectus and any amendment or
supplement thereto and (vii) with respect to the certificate from such
officers of the Fund, there has not been any change in the capital stock
of the Fund nor any material increase in the debt of the Fund from that
set forth in the Prospectus (and any amendment or supplement thereto)
and the Fund has not sustained any material liabilities or obligations,
direct or contingent, other than those reflected in the Prospectus (and
any amendment or supplement thereto).
(k) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(l) That the Fund and the Advisers shall have furnished to
you such further certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the Fund
and the Advisers).
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel acting in
good faith.
29
Any certificate or document signed by any officer of the Fund or
the Advisers and delivered to you, as Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a
representation and warranty by such party to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase any
Option Securities hereunder are subject to (i) the accuracy of and
compliance with the representations, warranties and agreements of and by
the Fund and the Advisers contained herein on and as of the Option
Closing Date, as though made on any Option Closing Date, the date on
which the Registration Statement becomes or became effective and the
date of the Prospectus (and any amendment or supplement thereto) (ii)
satisfaction on and as of any Option Closing Date of the conditions set
forth in this Section 7 except that, if any Option Closing Date is other
than the Closing Date, the certificates, opinions and letters referred
to in paragraphs (b), (c), (d), (e), (f), (j), (k) and this paragraph
shall be dated the Option Closing Date in question and the opinions and
letters called for by paragraphs (b), (c), (d), (e), (f), and this
paragraph shall be revised to reflect the sale of Option Securities,
(iii) the accuracy and completeness of all statements made by the Fund,
the Advisers or any of their officers in any certificate delivered to
the Representatives or their counsel pursuant to this Agreement and (iv)
the absence of circumstances on or prior to the Option Closing Date
which would permit termination of this Agreement pursuant to Section 11
hereof if they existed on or prior to the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 7 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Fund or the Advisers to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters,
the Fund will reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund, the
Investment Adviser and the Subadviser, jointly and severally, agree to indemnify
and hold harmless each of you and each other Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several (including
reasonable costs of investigation), to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Preliminary
Prospectus, any sales material (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, any Preliminary
Prospectus or any sales material (or any amendment or supplement to any of the
foregoing), in light of the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by
30
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Fund will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Fund by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein;
provided, further, that the foregoing indemnity with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus (or any amendment or
supplement to any of the foregoing) shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, damage or liability
purchased Securities, if it is shown that a copy of the Prospectus, as then
amended or supplemented, which would have cured any defect giving rise to such
loss, claim, damage or liability was not sent or delivered to such person by or
on behalf of such Underwriter, if required by law to be so delivered to, at or
prior to the confirmation of the sale of such Securities to such person and such
Prospectus, amendments and supplements have been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit proper
delivery. This indemnity agreement will be in addition to any liability which
the Fund, the Investment Adviser or the Subadviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Fund and the Advisers, each of its directors,
trustees, each of its officers who signs the Registration Statement, and each
person who controls the Fund or the Advisers within the meaning of the Act or
the Exchange Act, to the same extent as the indemnity from the Fund, the
Investment Adviser and the Subadviser to each Underwriter as set forth in
Section 9(a) hereof, but only with respect to written information relating to
such Underwriter furnished to the Fund by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Fund and the
Advisers acknowledge that the names of the underwriters and number of Shares
listed opposite such names in the first paragraph under the caption
"Underwriting" in the Prospectus, as well as, under the same caption, the last
sentence of the second paragraph, the first sentence of the eleventh paragraph,
the first sentence of the thirteenth paragraph and the eighteenth paragraph,
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
31
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 9 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then the Fund, the Advisers and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Advisers and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Advisers on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Fund, the
Advisers and the Underwriters severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Fund and the Advisers on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Fund and the Advisers shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by the Fund and
the Advisers, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Fund or the Advisers on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Fund, the Advisers and the Underwriters
agree that it would not be just and equitable if contribution
32
pursuant to this Section 9 were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (f), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Fund or the Advisers within the meaning of either
the Act or the Exchange Act, each officer of the Fund and the Advisers who shall
have signed the Registration Statement and each director of the Fund and the
Advisers shall have the same rights to contribution as the Fund and the
Advisers, subject in each case to the applicable terms and conditions of this
paragraph (f). The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective number of Firm Securities
set forth opposite their names in Schedule I (or such numbers of Firm Securities
increased as set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages or liabilities are incurred. The indemnity and
contribution agreements contained in this Section 9 and the representations and
warranties of the Fund and the Advisers set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
the Fund, the Advisers or their shareholders, trustees, directors, managers,
members or officers or any person controlling the Fund or the Advisers (control
to be determined within the meaning of the Act or the Exchange Act), (ii)
acceptance of any Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or to the Fund,
the Advisers or their shareholders, trustees, directors, managers, members or
officers or any person controlling any Underwriter, the Fund or the Advisers
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
10. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters or in such other proportion as you may specify in accordance with
the Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Fund. In the event of a default by any Underwriter as set forth in this
Section 10 which does not result in a
33
termination of this Agreement, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Fund and any nondefaulting Underwriter for damages
occasioned by its default hereunder. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Securities which a defaulting Underwriter agreed, but failed or
refused, to purchase.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, without liability
on the part of the Underwriters to the Fund or the Advisers, by notice given to
the Fund or the Investment Adviser prior to delivery of and payment for the
Securities, if at any time prior to such time (i) trading in the Fund's Common
Shares shall have been suspended by the Commission or the NYSE or trading in
securities generally on the NYSE shall have been suspended or limited or minimum
prices shall have been established on the NYSE, (ii) a commercial banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets in the United
States is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto). Notice of such termination may be given to the Fund or the Advisers by
telegram, facsimile or telephone and shall be subsequently confirmed by letter.
12. Representations and Indemnities to Survive. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Miscellaneous. Except as otherwise provided in Sections
6, 10 and 11 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (a) if to the Fund or the Investment
Advisor, c/o Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Berkshire, (b) if to the Subadviser, at the offices of
Gateway Investment Advisers, L.P. at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxx 00000, Attention: _________________ or (c) if to you, as Representatives of
the Underwriters, at the office of Citigroup Global Markets Inc. at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Fund, the Advisers, their trustees, directors and
officers and the other controlling persons referred to in Section 9 hereof and
their respective successors and assigns to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" or the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any
Securities in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with
the Secretary of State of The Commonwealth of Massachusetts. This Agreement has
been executed on behalf of
34
the Fund by the vice-president of the Fund in such capacity and not individually
and the obligations of the Fund under this Agreement are not binding upon such
officer, any of the trustees or the shareholders individually but are binding
only upon the assets and property of the Fund.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of
registration of the Fund as an investment company under the 1940 Act on
Form N-8A, as the 1940 Act Notification may be amended from time to
time.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940,
as amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
35
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus (including the statement
of additional information incorporated by reference therein) relating to
the Securities that is first filed pursuant to Rule 497 after the
Execution Time or, if no filing pursuant to Rule 497 is required, shall
mean the form of final prospectus (including the statement of additional
information incorporated by reference therein) relating to the
Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules
and Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN EQUITY PREMIUM INCOME FUND
By:
------------------------------
Name:
Title:
NUVEEN INSTITUTIONAL ADVISORY CORP.
By:
------------------------------
Name:
Title:
GATEWAY INVESTMENT ADVISERS, L.P.
By:
------------------------------
Name:
Title
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF FIRM SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ -------------------------------
Citigroup Global Markets Inc.
Nuveen Investments, LLC
