Exhibit 99(h)
FORM OF AGREEMENT
[__]
(a Delaware statutory trust)
[__]Common Shares of Beneficial Interest
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
[__], 2003
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
[__]
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
[__], a Delaware statutory trust (the "Fund"), the Fund's investment
adviser, [__], a Delaware corporation ("[__]" the "Adviser"), each confirms
its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), [__] and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx is acting as representative (in such capacity,
the "Representative"), with respect to the issue and sale by the Fund and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of common shares of beneficial interest, par value $.001 per
share, of the Fund ("Common Shares") set forth in said Schedule A, and with
respect to the grant by the Fund to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of [__] additional Common Shares to cover over-allotments, if any. The
aforesaid [__] Common Shares (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the [__] Common Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities."
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. [__]and No. [__])
covering the registration of the Securities under the Securities Act of 1933,
as amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses, and a notification on Form N-8A of registration of the Fund as
an investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), and the rules and regulations of the Commission under the
1933 Act and the 1940 Act (the "Rules and Regulations"). Promptly after
execution and delivery of this Agreement, the Fund will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the Rules and Regulations and paragraph (c) or (h) of Rule 497 ("Rule 497")
of the Rules and Regulations or (ii) if the Fund has elected to rely upon Rule
434 ("Rule 434") of the Rules and Regulations, prepare and file a term sheet
(a "Term Sheet") in accordance with the provisions of Rule 434 and Rule 497.
The information included in any such prospectus or in any such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration
statement at the time it became effective, if applicable, (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement,
including in each case any statement of additional information incorporated
therein by reference, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto and schedules thereto
at the time it became effective and including the Rule 430A Information and
the Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the
form first furnished to the Underwriters for use in connection with the
offering of the Securities, including the statement of additional information
incorporated therein by reference, is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated [__], 2003 together with the Term Sheet and all references in
this Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1 Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The
Fund and the Adviser jointly and severally represent and warrant to each
Underwriter as of the date hereof, as of the Closing Time referred to in
Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof, and agree with each Underwriter, as follows:
(i) Compliance With Registration Requirements. Each
Prepricing Prospectus included as part of the registration statement
as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post
effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the 1933 Act Rules and Regulations and
the 1940 Act Notification when originally filed with the Commission
and any amendment or supplement thereto when filed with the
Commission, complied or will comply in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations and did not or will not at any such times contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein 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.
The Fund has filed in a timely manner each document or
report required to be filed by it pursuant to the 1934 Act and the
rules and regulations of Commission promulgated thereunder (the "1934
Act Rules and Regulations"); each such document or report at the time
it was filed conformed to the requirements of the 1934 Act and the
1934 Act Rules and Regulations; and none of such documents or reports
contained an untrue statement of any material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the Rules and Regulations, has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Common Shares as
contemplated by this Agreement.
(ii) Independent Accountants. The accountants,
[PricewaterhouseCoopers LLP], who have audited and certified or shall
audit and certify the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) are independent public
accountants as required by the 1933 Act, the 1940 Act and the Rules
and Regulations.
(iii) Financial Statements. The financial statements,
together with related schedules and notes, included or incorporated
by reference in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them), present fairly the
financial position, results of operations and changes in financial
position of the Fund on the basis stated or incorporated by reference
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 and the Prospectus (and any amendment
or supplement to either of them) are accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Fund.
(iv) Expense Summary. The information set forth in the
Prospectus in the Fee Table has been prepared in accordance with the
requirements of Form N-2 and to the extent estimated or projected,
such estimates or projections are reasonably believed to be
attainable and reasonably based.
(v) No Material Adverse Change. 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, or entered into any transaction, not in the ordinary
course of business, that is material to the Fund, and there has not
been any change in the capital stock, or material increase in the
short term debt or long term debt, of the Fund, or any material
adverse change, or any development involving or which may reasonably
be expected to involve, a prospective material adverse change, in the
condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund, whether or not arising
in the ordinary course of business.
(vi) Good Standing of the Fund. The Fund is a statutory
trust duly organized and validly existing in good standing under the
laws of the State of Delaware, with full trust power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them), and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Fund.
(vii) No Subsidiaries. The Fund has no subsidiaries.
(viii) Investment Company Status. The Fund is duly
registered under the 1940 Act as a closed-end non-diversified
management investment company and the 1940 Act Notification has been
duly filed with the Commission and, at the time of filing thereof and
any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the Rules
and Regulations. The Fund is, and at all times through the completion
of the transactions contemplated hereby, will be, in compliance in
all material respects with the terms and conditions of the 1933 Act
and the 1940 Act.
(ix) Officers and Trustees. To the best knowledge of each of
the Fund and the Adviser, no person is serving as an officer, trustee
or investment adviser of the Fund except in accordance with the 1940
Act and the 1940 Act Rules and Regulations and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and the rules
and regulations of the Commission promulgated under the Advisers Act
(the "Advisers Act Rules and Regulations"). Except as disclosed in
the Registration Statement and the Prospectus (or any amendment or
supplement to either of them), 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.
No person is serving or acting as an officer, trustee or investment
adviser of the Fund except in accordance with the provisions of the
1940 Act and the 1940 Act Rules and Regulations and the Advisers Act
and the Advisers Act Rules and Regulations.
(x) Capitalization and Authorization of Securities. All the
outstanding shares of capital stock of the Fund have been duly
authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Common Shares have
been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights and will conform to the
description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them). 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).
(xi) Compliance With Governing Documents and Law. The Fund
is not in violation of its Agreement and Declaration of Trust or
by-laws, or other organizational documents, or 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 governmental agency, body or official having
jurisdiction over the Fund, or in default in any material respect in
the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or
in any contract required to be included as an exhibit to the
Registration Statement (each, a "Material Fund Agreement").
(xii) Absence of Proceedings. There are no legal or
governmental proceedings pending or threatened, against the Fund, or
to which the Fund or any of its properties is subject, that are
required to be described in the Registration Statement or the
Prospectus (and any amendment or supplement to either of them) but
are not described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus (and
any amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or filed
as required by the 1933 Act, the 1940 Act or the Rules and
Regulations.
(xiii) Possession of Intellectual Property. 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.
(xiv) Absence of Further Requirements. Neither the issuance
and sale of the Common Shares, the execution, delivery or performance
of this Agreement or any of the Investment Advisory Agreement, the
Custodian Agreement and the Transfer Agency Agreement (the "Fund
Agreements") by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or other order of or registration or filing
with, the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory
body, administrative agency or other governmental body, agency or
official (except such as may have been obtained prior to the date
hereof and such as may be required for compliance with the state
securities or blue sky laws of various jurisdictions which have been
or will be effected in accordance with this Agreement) or conflicts
or will conflict with or constitutes or will constitute a breach of,
or a default under, the Agreement and Declaration of Trust, including
the Statement of Preferences, or by-laws, or other organizational
documents, of the Fund or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, 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, or
violates or will violate any 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 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 its
property or assets is subject. The Fund is not subject to any order
of any court or of any arbitrator, governmental authority or
administrative agency.
(xv) Advertisements. All advertising, sales literature or
other promotional material (including "prospectus wrappers," "broker
kits," "road show slides" and "road show scripts"), whether in
printed or electronic form, authorized in writing by or prepared by
the Fund or the Adviser for use in connection with the offering and
sale of the Common Shares (collectively, "sales material") complied
and comply in all material respects with the applicable requirements
of the 1933 Act, the 1940 Act, the Rules and Regulations and the
rules and interpretations of the NASD and no such 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.
(xvi) Subchapter M. At all times since its inception, as
required by Subchapter M of the Code, the Fund has complied with the
requirements to qualify as a regulated investment company under the
Code.
(xvii) Distribution of Offering Materials. The Fund has not
distributed and, prior to the later to occur of (A) the Closing Date
and (B) completion of the distribution of the Common Shares, will not
distribute any offering material in connection with the offering and
sale of the Common Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any,
permitted by the 1933 Act, the 1940 Act or the Rules and Regulations.
(xviii) Accounting Controls. The Fund maintains and will
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization and
with the investment policies and restrictions of the Fund and with
the applicable requirements of the 1940 Act, the 1940 Act Rules and
Regulations and the Internal Revenue Code of 1986, as amended (the
"Code"); (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, and to
maintain accountability for assets and to maintain compliance with
the books and records requirements under the 1940 Act and the 1940
Act Rules and Regulations; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xix) Absence of Undisclosed Payments. To the Fund's
knowledge, except as disclosed in the Prospectus, neither the Fund
nor any employee or agent of the Fund has made any payment of funds
of the Fund or received or retained any funds, which payment, receipt
or retention of funds is of a character required to be disclosed in
the Prospectus.
(xx) Material Agreements. 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 and thereunder may be limited by federal or
state securities laws. Each of the Fund Agreements and the Fund's and
the Adviser's obligations under this Agreement and each of the Fund
Agreements comply in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act the Advisers Act Rules and Regulations.
(xxi) Registration Rights. No holder of any security of the
Fund has any right to require registration of any shares of capital
stock or any other security of the Fund because of the filing of the
Registration Statement or consummation of the transactions
contemplated by this Agreement.
(xxii) NYSE Listing. The Securities have been duly
authorized for listing, upon notice of issuance, on the New York
Stock Exchange ("NYSE") and the Fund's registration statement on Form
8-A under the 1934 Act been filed.
(xxiii) Taxes. The Fund has filed all tax returns required
to be filed, which returns are complete and correct, and the Fund is
not in material default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto.
(xxiv) Market Stabilization Activities. Except as stated in
this Agreement and in the Prospectus (and any amendment or supplement
thereto), the Fund has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any securities issued by the Fund to facilitate the sale or
resale of the Common Shares, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(b) Representations and Warranties by the Adviser. The Adviser
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof as follows:
(i) Good Standing of the Adviser. The Adviser is a limited
liability company duly organized and validly existing in good
standing under the laws of the State of New York, with full limited
liability 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 to either of them), and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where
the failure so to register or to qualify does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net assets or results of operations of the
Adviser and its subsidiaries, taken as a whole, or on the ability of
the Adviser to perform its obligations under this Agreement and the
Investment Advisory Agreement.
(ii) Adviser Status. The Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the 1940 Act Rules and Regulations from
acting under the Investment Advisory Agreement for the Fund as
contemplated by the Prospectus (or any amendment or supplement
thereto). There does not exist any proceeding or any facts or
circumstances the existence of which could lead to any proceeding
which might adversely affect the registration of the Adviser with the
Commission.
(iii) Description of the Adviser. The description of the
Adviser in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) complied and comply in all material
respects with the provisions the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) Capitalization. The Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Prospectus (or any amendment or
supplement thereto) and under this Agreement and the Investment
Advisory Agreement.
(v) Authorization. The execution and delivery of, and the
performance by the Adviser of its obligations under, this Agreement
and the Investment Advisory Agreement have been duly and validly
authorized by the Adviser, and this Agreement and the Investment
Advisory Agreement have been duly executed and delivered by the
Adviser and each constitutes the valid and legally binding agreement
of the Adviser, enforceable against the Adviser in accordance with
its terms except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws.
(vi) Absence of Proceedings. There are no legal or
governmental proceedings pending or, to the knowledge of the Adviser,
threatened against the Adviser, or to which the Adviser or any of its
properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as required or
that may reasonably be expected to involve a prospective material
adverse change, in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the
Adviser and its subsidiaries, taken as a whole, or on the ability of
the Adviser to perform its obligations under this Agreement and the
Investment Advisory Agreement.
(vii) Absence of Violation or Default. The Adviser is not in
violation of its articles of organization, by-laws or other
organizational documents or in default under any agreement, indenture
or instrument, where such violation or default would reasonably be
expected to have a material adverse effect on the ability of the
Adviser to function as an investment adviser or perform its
obligations under the Investment Advisory Agreement.
(viii) Absence of Required Approvals and Conflicts. Neither
the execution, delivery or performance of this Agreement or the
Investment Advisory Agreement by the Adviser, nor the consummation by
the Adviser of the transactions contemplated hereby or thereby (A)
requires the Adviser to obtain 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, regulatory body, administrative
agency or other governmental body, agency or official or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under the certificate of incorporation or by-laws, or other
organizational documents of the Adviser or (B) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any agreement, indenture, lease or other instrument to
which the Adviser is a party or by which it or any of its properties
may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Adviser or any of its properties or will result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the 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 the Adviser is
subject. The Adviser is not subject to any order of any court or of
any arbitrator, governmental authority or administrative agency
except for (1) an Order of the Securities and Exchange Commission,
dated August 17, 1988 and (2) an Order of the Federal Communications
Commission, dated August 21, 1992.
(ix) Absence of Undisclosed Liabilities. Except as disclosed
in the Registration Statement and the Prospectus (or 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 (or any amendment or supplement to either of them),
the Adviser has not incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Adviser and its
subsidiaries, taken as a whole, and that is required to be disclosed
in the Registration Statement or in the Prospectus and there has not
been any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the
Adviser and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, or which, in each case,
may reasonably be expected to have a material adverse effect on the
ability of the Adviser to perform its obligations under this
Agreement and the Investment Advisory Agreement.
(x) Permits and Licenses. The Adviser has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its properties and to
conduct its business in the manner described in the Prospectus (and
any amendment or supplement thereto); the 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 the Adviser under any such
permit; 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 Adviser.
(xi) Market Stabilization Activities. Except as stated in
this Agreement and in the Prospectus (and in any amendment or
supplement thereto), the Adviser has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities issued by the Fund to
facilitate the sale or resale of the Common Shares, and the Adviser
is not aware of any such action taken or to be taken by any
affiliates of the Adviser; it being understood that the Underwriters
include certain affiliates of the Adviser and that stabilization or
other activity by you shall not be deemed to be violative of this
representation.
(xii) Key Personnel. Xxxxx X. Xxxxxxx is the validly
appointed Chief Investment Officer of the Adviser and the portfolio
manager of the Fund; Xx. Xxxxxxx has not given notice nor made known
an intention to give notice of termination of his employment and the
Adviser knows of no reason why Xx. Xxxxxxx should be unable to serve
as portfolio manager to the Fund.
(xiii) Control of Electronic Information. In the event that
the Fund or the Adviser makes available any promotional materials
intended for use only by qualified broker dealers and registered
representatives thereof by means of a proprietary Internet web site
administered by such party or similar electronic means, the Fund or
the Adviser will install and maintain pre-qualification and password
protection or similar procedures which are reasonably designed to
restrict access to such promotional materials by persons other than
qualified broker dealers and representatives thereof.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Fund agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Fund, at the price per share set forth in Schedule B, the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Fund hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
[__]Common Shares in the aggregate at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
declared by the Fund and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 45 days after the
date hereof and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by
the Representative to the Fund setting forth the number of Option Securities
as to which the several Underwriters are then exercising the option and the
time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (a "Date of Delivery") shall be determined by the
Representative, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales or purchases
of a fractional number of Option Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Representative
and the Fund, at [__](Eastern time) on the third (fourth, if the pricing
occurs after [__]. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representative and the Fund (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representative and the Fund, on each Date of Delivery as specified in the
notice from the Representative to the Fund.
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
and registered in such names as the Representative may request in writing at
least one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and
packaging by the Representative in the City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants.
(a) The Fund and the Adviser, jointly and severally, covenant with
each Underwriter as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Fund, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Fund will promptly effect
the filings necessary pursuant to Rule 497 and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Fund will make every reasonable
effort to prevent the issuance of any stop order, or order of
suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, and, if any such stop order or order of suspension or
revocation of registration is issued, to obtain the lifting thereof
at the earliest possible moment.
(ii) Filing of Amendments. The Fund will give the
Representative notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, will furnish the
Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representative or
counsel for the Underwriters shall object.
(iii) Delivery of Registration Statements. The Fund has
furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge,
a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iv) Delivery of Prospectuses. The Fund has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Fund
hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Fund will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(v) Continued Compliance with Securities Laws. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Fund, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act
or the Rules and Regulations, the Fund will promptly prepare and file
with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with
such requirements, and the Fund will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(vi) Blue Sky Qualifications. The Fund will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the
Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Fund shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Fund will file such statements
and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than
one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(vii) Rule 158. The Fund will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(ix) Listing. The Fund will use its reasonable best efforts
to effect the listing of the Securities on the NYSE, subject to
notice of issuance, concurrently with the effectiveness of the
Registration Statement.
(x) Restriction on Sale of Securities. During a period of
180 days from the date of the Prospectus, the Fund will not, without
the prior written consent of Xxxxxxx Xxxxx, (A) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (B) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common
Shares, whether any such swap or transaction described in clause (A)
or (B) above is to be settled by delivery of Common Shares or such
other securities, in cash or otherwise. The foregoing sentence shall
not apply to (1) the Securities to be sold hereunder or (2) Common
Shares issued pursuant to any dividend reinvestment plan.
(xi) Reporting Requirements. The Fund, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1940 Act and the 1934 Act within the time
periods required by the 1940 Act and the Rules and Regulations and
the 1934 Act and the rules and regulations of the Commission
thereunder, respectively.
(xii) Subchapter M. The Fund will comply with the
requirements of Subchapter M of the Code to qualify as a regulated
investment company under the Code.
(xiii) No Manipulation of Market for Securities. The Fund
will not (a) take, directly or indirectly, any action designed to
cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the
Securities, and (b) until the Closing Date, or the Date of Delivery,
if any, (i) sell, bid for or purchase the Securities or pay any
person any compensation for soliciting purchases of the Securities or
(ii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Fund .
(xiv) Rule 462(b) Registration Statement. If the Fund elects
to rely upon Rule 462(b), the Fund shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Fund shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Fund's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(a)(vi) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (x)
the fees and expenses incurred in connection with the listing of the
Securities on the NYSE and (xi) the printing of any sales material. Also, the
Fund shall pay to Xxxxxxx Xxxxx, on behalf of the Underwriters, $[__] per
share of the securities purchased pursuant to this agreement as partial
reimbursement of expenses incurred in connection with the offering. The
Adviser has agreed to pay organizational expenses and offering costs of the
Fund (other than sales load, but including the partial reimbursement of
expenses described in the preceding sentence) that exceed $[__] per Common
Share.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund and the Adviser, jointly and severally, agree that they shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Fund and the Adviser
contained in Section 1 hereof or in certificates of any officer of the Fund or
the Adviser delivered pursuant to the provisions hereof, to the performance by
the Fund and the Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act, no
notice or order pursuant to Section 8(e) of the 1940 Act shall have been
issued, and no proceedings with respect to either shall have been initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 497 (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A) or, if the Fund has elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 497.
(b) Opinion of Counsel for Fund and the Adviser. At Closing Time, the
Representative shall have received the favorable opinions, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Fund and
the Adviser, and Xxxxx XxXxx, counsel for the Fund, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letters for each of the other Underwriters to the
effect set forth in Exhibit A hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxxx Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
to the effect set forth in Exhibit B hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Fund and certificates of public officials.
(d) Officers' Certificates. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course
of business, and the Representative shall have received a certificate of a
duly authorized officer of the Fund and of the chief financial or chief
accounting officer of the Fund and of the President or a Vice President or
Managing Director of each of the Adviser, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Sections 1(a) and (b) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Fund and the Adviser, respectively, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement, or order of
suspension or revocation of registration pursuant to Section 8(e) of the 1940
Act, has been issued and no proceedings for any such purpose have been
instituted or are pending or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from [__] a letter dated
such date, in form and substance satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from [__] a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the NYSE, subject only to official notice of
issuance.
(h) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Execution of Additional Compensation Agreement. At Closing Time,
Xxxxxxx Xxxxx shall have received the Additional Compensation Agreement, dated
as of the Closing Date, as executed by [__].
(j) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Fund contained herein and the statements in any certificates
furnished by the Fund hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representative shall have
received:
(i) Officers' Certificates. Certificates, dated such Date of
Delivery, of a duly authorized officer of the Fund and of the chief
financial or chief accounting officer of the Fund and of the
President or a Vice President or Managing Director of the Adviser
confirming that the information contained in the certificate
delivered by each of them at the Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Fund and the Adviser. The
favorable opinion of each Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Fund and the Adviser, and Xxxxx XxXxx, counsel for
the Fund, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable
opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from
[PricewaterhouseCoopers LLP], in form and substance satisfactory to
the Representative and dated such Date of Delivery, substantially in
the same form and substance as the letter furnished to the
Representative pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of
Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Fund and the Adviser in connection with the
organization and registration of the Fund under the 1940 Act and the issuance
and sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Representative and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representative by notice to the Fund at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and
13 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless each of you and
each other Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation), joint or several, arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, any
Prepricing Prospectus, any sales material (or any amendment or supplement to
any of the foregoing), or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon and
in conformity with the information relating to such Underwriter furnished in
writing to the Fund by or on behalf of any Underwriter through you expressly
for use in connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any Prepricing Prospectus
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Shares by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the 1933 Act and
the 1933 Act Rules and Regulations, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the Fund
has delivered the Prospectus to the several Underwriters in requisite quantity
on a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability that the Fund or the Adviser
may otherwise have.
(b) Procedure. If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect
of which indemnity may be sought against the Fund or the Adviser, such
Underwriter or such controlling person shall promptly notify the Fund or the
Adviser, and the Fund or the Adviser shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the Fund or
the Adviser has agreed in writing to pay such fees and expenses, (ii) the Fund
and the Adviser have failed to assume the defense and employ counsel, or (iii)
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such controlling person
and the Fund or the Adviser and such Underwriter or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and the Fund or the Adviser by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Adviser shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the Fund and the Adviser shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, and that all such fees and expenses shall
be reimbursed as they are incurred. The Fund and the Adviser shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Fund and the Adviser agree to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Indemnification of Fund and Adviser by Underwriters. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Fund and the Adviser, their trustees, their directors, any officers who
sign the Registration Statement, and any person who controls the Fund or the
Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, to the same extent as the foregoing indemnity from the Fund and the
Adviser to each Underwriter, but only with respect to information relating to
such Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Fund or the Adviser,
any of their trustees, their directors, any such officer, or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Fund and the Adviser by paragraph (b) above (except that if the Fund or the
Adviser shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Fund and the Adviser, their trustees,
their directors, any such officer, and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability that the
Underwriters may otherwise have.
(d) Settlement and Consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) Survival. Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 6 or Section 7 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 6 and Section 7 and the representations and warranties of the Fund and
the Adviser 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
Adviser, their trustees, their directors or officers, or any person
controlling the Fund or the Adviser, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor
to any Underwriter or any person controlling any Underwriter, or to the Fund,
the Adviser, their trustees, their directors or officers, or any person
controlling the Fund or the Adviser, shall be entitled to the benefits of the
indemnity, contribution, and reimbursement agreements contained in this
Section 6 or Section 7.
(f) Notwithstanding any other provisions in this Section 6 or Section
7, no party shall be entitled to indemnification or contribution under this
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties in the performance of its duties hereunder.
SECTION 7. Contribution.
(a) If the indemnification provided for in Section 6 is unavailable
to an indemnified party under paragraphs (a) or (c) thereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund and the Adviser on the one hand (treated jointly
for this purpose as one person) and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund and the
Adviser on the one hand (treated jointly for this purpose as one person) and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Fund bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault of the Fund and the Adviser on the one
hand (treated jointly for this purpose as one person) and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Fund and the Adviser on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Fund, the Adviser and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (a)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (a)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to the respective numbers of Shares
set forth opposite their names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Fund or the Advisers submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Fund or the Advisers, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Fund, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive
of any supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Fund or the Advisers, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change
in the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Shares of the Fund has been suspended or materially limited by the
Commission or the NYSE, or if trading generally on the New York Stock Exchange
or the NYSE or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a
banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Fund to sell the Option Securities to
be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Fund to sell the relevant
Option Securities, as the case may be, either the Representative or the Fund
shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure.
Notwithstanding any other provision of this Agreement, from the
commencement of discussions with respect to the transactions contemplated
hereby, the Fund (and each employee, representative or other agent of the
Fund) may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure (as such terms are used in Sections 6011, 6111
and 6112 of the U.S. Code and the Treasury Regulations promulgated thereunder)
of the transactions contemplated by this Agreement and all materials of any
kind (including opinions or other tax analyses) that are provided relating to
such tax treatment and tax structure.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative, x/x Xxxxxxx Xxxxx & Xx., Xxxxx Xxxxx, Xxxxx
Financial Center, New York, New York 10080, attention of Equity Capital
Markets; and notices to the Fund or the Adviser shall be directed, as
appropriate, to the office of [__], Attention: [__]
SECTION 13. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Fund, the Advisers and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Advisers and their respective successors and the
controlling persons and officers, trustees and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund, the Advisers and their respective partners and
successors, and said controlling persons and officers, trustees and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Fund and the Advisers in accordance with its terms.
Very truly yours,
[__]
By:_____________________________
Name:
Title:
[__]
By:_____________________________
Name:
Title:
[__]
By:_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:______________________________
Authorized Signatory
For themselves and as
Representative of the
other Underwriters named
in Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
TOTAL: [__]
Sch A-1
SCHEDULE B
[__]
[__]Common Shares of Beneficial Interest
(Par Value $.001 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $[20.00].
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $[__], being an amount equal to the initial
public offering price set forth above less $[__] per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Initial Securities but not payable on the Option
Securities.
Sch B-1
Exhibit A
FORM OF OPINION OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE FUND
Ladies and Gentlemen:
We have acted as counsel to [__], a Delaware statutory trust
(the "Fund"), in connection with the issuance and sale by the Fund of [__]
(the "Shares"), pursuant to the Underwriting Agreement, dated as of [__], 2003
(the "Underwriting Agreement"), between the Fund and Gabelli Funds, LLC (the
"Adviser") and you.
This opinion is being furnished pursuant to Sections [__] of
the Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Underwriting
Agreement.
In connection with this opinion, we have examined [__] and
[__] such other documents as we have deemed necessary or appropriate as a
basis for the opinions set forth herein. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Fund and such agreements, certificates of public officials,
certificates of officers or other representatives of the Fund and others, and
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto
had the corporate power to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and, except to the extent set forth in numbered paragraph 6 below,
the validity and binding effect thereof. In rendering the opinion set forth in
numbered paragraph 4 below, we have also assumed that the execution and
delivery by the Fund of the Underwriting Agreement and the performance by the
Fund of its obligations thereunder do not and will not violate or constitute a
default under (i) any agreement or instrument to which the Fund is subject
other than Material Agreements, (ii) any law, rule, or regulation to which the
Fund is subject (except that we do not make the assumption set forth in this
clause (ii) with respect to Applicable Laws (as defined below)), (iii) any
judicial or regulatory decree of any Governmental Authority other than as
identified on a certificate or of which we have actual knowledge or (iv) any
consent, approval, license, authorization or validation of, or filing,
recording or registration with any Governmental Authority other than as
identified on an Officer's Certificate or of which we have actual knowledge.
As to any facts material to the opinions expressed herein that we did not
independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Fund and others.
With respect to any agreement or instrument examined by us
which by its terms purports to be governed by the laws of any jurisdiction
other than the Federal laws of the United States, the Delaware Statutory Trust
Act or the laws of the State of New York, our opinions are based solely upon
our understanding of the plain language of such agreement or instrument, and
we do not express any opinion with respect to the interpretation, validity,
binding nature or enforceability of any agreement or instrument which by its
terms purports to be governed by the laws of any jurisdiction other than the
United States, the State of Delaware or the State of New York.
B-1
As used herein, (i) the term "Applicable Laws" means the New
York Business Corporation Law, the Delaware Statutory Trust Act and those
laws, rules and regulations of the State of Delaware, the State of New York
and the United States of America that, in our experience, are normally
applicable to entities such as the Fund or transactions of the type
contemplated by the Underwriting Agreement, but without our having made any
special investigation concerning any other laws, rules or regulations;
provided that the term "Applicable Laws" does not include (a) the rules and
regulations of the National Association of Securities Dealers, Inc., (b) any
federal or state securities or blue sky laws, (c) any antifraud laws or (d)
any law, rule or regulation that may have become applicable to the Fund as a
result of the Underwriters' involvement with the transactions contemplated by
the Underwriting Agreement or because of any facts specifically pertaining to
the Underwriters; (ii) the term "Material Agreement" means any bond,
debenture, note or other evidence of indebtedness or any contract or agreement
included as an exhibit to the Registration Statement; (iii) the term
"Governmental Authority" means any Delaware, New York or federal executive,
legislative, judicial, administrative or regulatory body under Applicable Laws
and the New York Stock Exchange; and (iv) the term "Governmental Approval"
means any consent, approval, license, authorization, order or validation of,
or filing, recording or registration with, any Governmental Authority pursuant
to Applicable Laws.
The opinions set forth herein as to our knowledge are based
on our discussions with the officers of the Fund responsible for the matters
discussed therein and our review of documents furnished to us by the Fund, and
we have not made any search of the public docket records of any court,
governmental agency or body or administrative agency.
Members of our firm are admitted to the Bar in the State of
New York and the State of Delaware, and we do not express any opinion as to
the laws of any other jurisdiction other than the laws of the United States of
America to the extent referred to specifically herein.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Fund is a statutory trust duly formed, validly
existing and in good standing under the laws of the State of Delaware with
full trust power 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 in effect as of the date
hereof). The opinion set forth in this paragraph 1 with respect to the Fund's
formation, existence and standing is based solely upon our review of a
certificate of the Secretary of State of Delaware and a telephonic
confirmation from the Secretary of State of the State of Delaware.
2. The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable. The issuance of the Shares will not be subject to preemptive or
other similar rights entitling any person to purchase or acquire any of the
Shares upon the issuance thereof by the Fund which arise by operation of the
laws of the State of Delaware or under the Agreement and Declaration of Trust
or the By-Laws.
3. The authorized and outstanding capital shares of the Fund
are as set forth under the caption "[__]" in the Prospectus and the authorized
capital shares of the Fund (including the Shares) conform in all material
respects to the description thereof contained in the Prospectus under the
captions "[__]".
4. The Fund has the requisite trust power and authority to
enter into and execute and deliver the Underwriting Agreement and to issue,
sell and deliver the Shares to the Underwriters as provided for therein.
5. Each Fund Agreement and the Underwriting Agreement has
been duly executed and delivered by the Fund and is a valid, legal and binding
agreement of the Fund, enforceable against the
B-2
Fund in accordance with its terms, except to the extent that (i) enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally or (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity) and
(ii) enforcement of rights to indemnity and contribution under the Fund
Agreements and the Underwriting Agreement may be limited by Federal or state
securities laws or principles of public policy.
6. Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of the Underwriting Agreement and the Fund
Agreements by the Fund, compliance by the Fund with the provisions of such
Fund Agreements or the Underwriting Agreement nor consummation by the Fund of
the transactions contemplated by the Underwriting Agreement and the Fund
Agreements conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under the Agreement and Declaration of Trust, the
statement of preferences relating to each series of the Fund's preferred
shares (including the Statement of Preferences), the By-Laws or any Material
Agreement or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund under any Material
Agreement, nor will any such action result in any violation of (i) any
Applicable Law or (ii) any judgment, order or decree identified in an
Officer's Certificate (a) of a Governmental Authority or (b) pursuant to the
1933 Act, the Securities Exchange Act of 1934 (the "1934 Act") and the
Investment Company Act.
7. The Fund has full trust power and all necessary
governmental authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental regulatory officials and
bodies required under Applicable Law (except where the failure to have any
such authorizations, approvals, orders, licenses, certificates, franchises or
permits, individually or in the aggregate, would not have a material adverse
effect on the business, properties, operations or financial condition of the
Fund), to own its properties and to conduct business as described in the
Prospectus.
8. No consent, approval, authorization or other order of, or
registration or filing with, any securities commission, court, regulatory
body, administrative agency or other governmental body, agency, or official of
the State of Delaware is required on the part of the Fund for the valid
issuance and sale of the Shares to the Underwriters as contemplated by the
Underwriting Agreement, the execution and delivery by the Fund of the
Underwriting Agreement and the performance by the Fund of its obligations
thereunder or the consummation of the transactions contemplated thereby by the
Fund, except those as may be required under the securities or blue sky laws of
the State of Delaware (as to which we express no opinion); it being understood
that we do not express any opinion as to any such consent, approval,
authorization or other order of, or registration or filing, which may be
required as a result of the involvement of any other parties to the
Underwriting Agreement.
9. No (i) Governmental Approval or (ii) consent, approval,
license, authorization, order or validation of, or filing, recording or
registration with, any Governmental Authority pursuant to the 1933 Act, the
1934 Act and the Investment Company Act ("Other Approvals") is required for
the valid issuance and sale of the Shares to the Underwriters or the
execution, delivery and performance by the Fund of the Underwriting Agreement
and the Fund Agreements or consummation of the transactions contemplated
thereby except such Governmental Approvals and Other Approvals as have been
obtained.
10. The 1940 Act Notification, the Registration Statement,
the Prospectus, the Fund's Registration Statement on Form 8-A under the 1934
Act and any supplement or amendment thereto in effect as of the date hereof
(except for the financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as to which we
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the Investment Company Act and the 1934 Act and
the rules and regulations under the 1933 Act, the Investment Company Act and
the 1934 Act.
B-3
11. To our actual knowledge, after reasonable inquiry, other
than as described or contemplated in the Registration Statement or Prospectus
(or any supplement thereto), there are (i) no legal or governmental
proceedings in the State of Delaware, the State of New York or, to our actual
knowledge, any other state, pending or threatened against the Fund, or to
which the Fund or any of its properties is subject, which are required to be
described in the Registration Statement or Prospectus (or any amendment or
supplement to either of them in effect as of the date hereof) that are not
described as required and (ii) 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
in effect as of the date hereof) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as the
case may be.
12. Each of the Fund Agreements and the Fund's and the
Adviser's obligations under each of the Underwriting Agreement and the Fund
Agreements comply as to form in all material respects with all applicable
provisions of the 1933 Act, the Investment Company Act, the Investment
Advisers Act of 1940 and the rules and regulations under each of the 1933 Act,
the Investment Company Act and the Investment Advisers Act of 1940.
13. The Fund is duly registered with the Commission under
the Investment Company Act as a closed-end, non-diversified management
investment company; and the provisions of the Fund's Agreement and Declaration
of Trust and the statement of preferences relating to each series of the
Fund's preferred shares (including but not limited to the Statement of
Preferences) and the By-Laws, as supplemented, amended and restated, the
investment policies and restrictions described in the Registration Statement
and the Prospectus under the captions "[The Fund]," "[Investment Objective and
Policies]," "[Risk Factors and Special Considerations]" and "[Investment
Restrictions]" (in the statement of additional information) comply in all
material respects with the requirements of the Investment Company Act, and all
action has been taken by the Fund as is required of the Fund by the 1933 Act
and the Investment Company Act and the rules and regulations under the 1933
Act and the Investment Company Act in connection with the issuance and sale of
the Shares to make the public offering and consummate the sale of the Shares
as contemplated by the Underwriting Agreement.
14. To our actual knowledge after reasonable inquiry, except
as described in the Prospectus, there is no holder of any security of the Fund
or any other person who has the right, contractual or otherwise pursuant to
any Material Agreement, to cause the Fund to sell or otherwise issue to them,
or to permit them to underwrite the sale of, the Shares or the right to have
any securities of the Fund included in the Registration Statement or the
right, as a result of the filing of the Registration Statement, to require
registration under the 1933 Act of any securities of the Fund.
15. The forms of certificates for the Shares do not conflict
with any requirements of Delaware Statutory Trust law.
We have been orally advised that the Registration Statement
was declared effective at [__] on [__], 2003 and, to our best knowledge after
reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement or order pursuant to Section 8(e) of the Investment
Company Act has been issued and no proceedings for that purpose are pending
before or contemplated by the Commission; and any required filing of the
Prospectus pursuant to Rule 497 has been made in accordance with Rule 497.
With respect to the opinions set forth in numbered paragraph
[2] above, we point out that our opinion as to preemptive rights or other
rights to subscribe to or purchase securities is only as to the rights that
would be created as a matter of Delaware law or under the Agreement and
Declaration of Trust or the By-Laws. We do not express any opinion as to
preemptive or other similar rights of shareholders of the Fund that may exist
under the terms of any contractual arrangement to which the Fund may be a
party.
B-4
This opinion is furnished to you solely for your benefit,
the benefit of the other Underwriters and, solely with respect to matters
relating to the Delaware Statutory Trust Act, [__], counsel to the
Underwriters, in connection with the closing under the Underwriting Agreement
occurring today and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our prior express written
permission, except to the extent that such use, circulation, quotation, or
reference is necessary so that the issuance of the Shares is not treated as a
"confidential transaction" within the meaning of Treasury Regulations section
1.6011-4(b)(3).
Very truly yours,
B-5
FORM OF OPINION OF ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE ADVISER
Ladies and Gentlemen:
We have acted as special counsel to Gabelli Funds, LLC, a
New York limited liability company (the "Adviser"), in connection with the
issuance and sale by [__] (the "Fund"), a Delaware statutory trust, of [__]
(the "Shares"), pursuant to the Underwriting Agreement, dated as of [__], 2003
(the "Underwriting Agreement"), between the Fund, the Adviser and you.
This opinion is being furnished pursuant to Section [__] of
the Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Underwriting
Agreement.
In connection with this opinion, we have examined [__] and
[__] such other documents as we have deemed necessary or appropriate as a
basis for the opinions set forth herein. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Fund and such agreements, certificates of public officials,
certificates of officers or other representatives of the Fund and others, and
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto
other than the Adviser had the corporate power to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties other than the Adviser of such documents and, except to the extent set
forth in numbered paragraph 3 below, the validity and binding effect thereof.
In rendering the opinion set forth in numbered paragraph 3 below, we have also
assumed that the execution and delivery by the Adviser of the Underwriting
Agreement and the performance by the Adviser of its obligations thereunder do
not and will not violate or constitute default under (i) any agreement or
instrument to which the Adviser is subject other than Material Agreements (as
defined below); (ii) any law, rule, or regulation to which the Adviser is
subject (except that we do not make the assumption set forth in this clause
(ii) with respect to Applicable Laws (as defined below)); (iii) any judicial
or regulatory decree of any Governmental Authority (as defined below) other
than as identified on an Officer's Certificate or of which we have actual
knowledge; or (iv) any consent, approval, license, authorization or validation
of, or filing, recording or registration with any Governmental Authority other
than as identified on an Officer's Certificate or of which we have actual
knowledge. As to any facts material to the opinions expressed herein that we
did not independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Fund and others.
With respect to any agreement or instrument examined by us
which by its terms purports to be governed by the laws of any jurisdiction
other than the Federal laws of the United States or the laws of the State of
New York, our opinions are based solely upon our understanding of the plain
language of such agreement or instrument, and we do not express any opinion
with respect to the interpretation, validity, binding nature or enforceability
of any agreement or instrument which by its terms purports to be governed by
the laws of any jurisdiction other than the United States or the State of New
York.
B-6
As used herein, (i) the term "Applicable Laws" means the New
York Business Corporation Law and those laws, rules and regulations of the
State of New York and the United States of America that, in our experience,
are normally applicable to entities such as the Adviser or transactions of the
type contemplated by the Underwriting Agreement, but without our having made
any special investigation concerning any other laws, rules or regulations;
provided that the term "Applicable Laws" does not include (a) the rules and
regulations of the National Association of Securities Dealers, Inc., (b) any
federal or state securities or blue sky laws, (c) any antifraud laws or (d)
any law, rule or regulation that may have become applicable to the Adviser as
a result of the Underwriters' involvement with the transactions contemplated
by the Underwriting Agreement or because of any facts specifically pertaining
to the Underwriters; (ii) the term "Material Agreement" means any contract or
agreement identified in an Officer's Certificate as material or as one which
could have an effect on the type of transactions contemplated by the
Underwriting Agreement; (iii) the term "Governmental Authority" means any New
York or federal executive, legislative, judicial, administrative or regulatory
body under Applicable Laws and the New York Stock Exchange; and (iv) the term
"Governmental Approval" means any consent, approval, license, authorization,
order or validation of, or filing, recording or registration with, any
Governmental Authority pursuant to Applicable Laws.
The opinions set forth herein as to our knowledge are based
on our discussions with the officers of the Adviser responsible for the
matters discussed therein and our review of documents furnished to us by the
Adviser, and we have not made any search of the public docket records of any
court, governmental agency or body or administrative agency.
Members of our firm are admitted to the Bar in the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction other than the laws of the United States of America to the extent
referred to specifically herein.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Adviser is a limited liability company duly organized
and validly existing in good standing under the laws of the State of New York
with full limited liability 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 to
either of them in effect as of the date hereof). The opinion set forth in this
paragraph 1 with respect to the Adviser subsisting and in good standing as a
corporation under the laws of the State of New York is based solely upon our
review of a certificate of the Secretary of State of the State of New York and
a telephonic confirmation from the Secretary of State of the State of New
York.
2. The Adviser is duly registered with the Commission as an
investment adviser under the Investment Advisers Act of 1940 (the "Advisers
Act") and is not prohibited by the Advisers Act, the Investment Company Act or
the rules and regulations under each of the Advisers Act and the Investment
Company Act from acting under the Investment Advisory Agreement for the Fund
as contemplated by the Prospectus (or any amendment or supplement thereto in
effect as of the date hereof).
3. The Adviser has limited liability company power and
authority to enter into the Underwriting Agreement and the Investment Advisory
Agreement, and the Underwriting Agreement and the Investment Advisory
Agreement have been duly authorized, executed and delivered by the Adviser and
each is a valid, legal and binding agreement of the Adviser, enforceable
against the Adviser in accordance with its terms except to the extent that (i)
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or
in equity) and (ii) enforcement of rights to indemnity and contribution under
the Fund Agreements and the Underwriting Agreement may be limited by Federal
or state securities laws or principles of public policy.
B-7
4. Neither the execution, delivery or performance of the
Underwriting Agreement or the Investment Advisory Agreement by the Adviser,
compliance by the Adviser with the provisions of the Underwriting Agreement or
the Investment Advisory Agreement nor consummation by the Adviser of the
transactions contemplated by the Underwriting Agreement and the Investment
Advisory Agreement conflicts or will conflict with, or constitutes or will
constitute a breach of or default under the Certificate of Formation or
Operating Agreement, or other organizational documents, of the Adviser or any
Material Agreement to which the Adviser is a party or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Adviser under any Material Agreement, nor will any such action
result in any violation of any Applicable Law.
5. No (i) Governmental Approval or (ii) consent, approval,
license, authorization, order or validation of, or filing, recording or
registration with, any Governmental Authority pursuant to the 1933 Act, the
Securities Exchange Act of 1934, the Investment Company Act and the Advisers
Act ("Other Approvals") is required on the part of the Adviser for the
execution, delivery and performance by it of the Underwriting Agreement and
the Investment Advisory Agreement to which it is a party or the consummation
by it of the transactions contemplated by such agreements except such
Governmental Approvals and Other Approvals as have been obtained.
6. To our actual knowledge after reasonable inquiry, there
are no legal or governmental proceedings pending or threatened against the
Adviser or to which the Adviser or any of its properties is subject, which are
required to be described in the Registration Statement or the Prospectus (or
any amendment or supplement to either of them in effect as of the date hereof)
but are not described as required or which could be reasonably expected to
adversely affect the ability of the Adviser to perform its obligations under
the Underwriting Agreement or the Investment Advisory Agreement.
7. The obligations of the Adviser under the Underwriting
Agreement and the Investment Advisory Agreement comply in all material
respects with all applicable provisions of the Investment Company Act, the
Advisers Act and the rules and regulations under each of the Investment
Company Act and the Advisers Act.
8. The Adviser has full limited liability company power and
authority and all necessary governmental authorizations, approvals, orders,
licenses, certificates, franchises and permits of and from all governmental
regulatory officials and bodies required under Applicable Law (except where
the failure so to have any such authorizations, approvals, orders, licenses,
certificates, franchises or permits, individually or in the aggregate, would
not have a material adverse effect on the business, properties, operations or
financial condition of the Adviser and its subsidiaries), to own its
properties and to conduct business including specifically its business of
acting as investment adviser to registered investment companies and as
otherwise described in the Prospectus, and to perform its obligations under
the Investment Advisory Agreement.
We have been advised by the Adviser that the Adviser is not
registered or qualified to conduct its business as a foreign corporation in
any jurisdiction and that it believes there is no such jurisdiction where the
nature of its properties or the conduct of its business requires such
registration or qualification and where the failure to register or qualify
would have a material adverse effect on the operations of the Adviser or on
the ability of the Adviser to perform its obligations under the Underwriting
Agreement or the Investment Advisory Agreement.
B-8
This opinion is furnished to you solely for your benefit and
the benefit of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without our prior
express written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
B-9
FORM OF OPINION OF XXXXX XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE FUND
Ladies and Gentlemen:
I have acted as counsel to [__], a Delaware statutory trust
(the "Fund"), in connection with the issuance and sale by the Fund of [__]
(the "Shares"), pursuant to the Underwriting Agreement, dated as of [__], 2003
(the "Underwriting Agreement"), between the Fund and Gabelli Funds, LLC (the
"Adviser") and you.
This opinion is being furnished pursuant to Section [__] of
the Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Underwriting
Agreement.
In connection with this opinion, I have examined [__] (such
Agreement and Declaration of Trust, the "Governing Documents") and By-Laws of
the Fund, each as amended through the date hereof, [__] (the "Fund
Agreements") and [__] such other documents as I have deemed necessary or
appropriate as a basis for the opinions set forth herein. I have also examined
originals or copies, certified or otherwise identified to my satisfaction, of
such records of the Fund and such agreements, certificates of public
officials, certificates of officers or other representatives of the Fund and
others, and such other documents, certificates and records as I have deemed
necessary or appropriate as a basis for the opinion set forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making my
examination of executed documents, I have assumed that the parties thereto had
the corporate power to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and the validity and binding effect thereof. I have also assumed that
the execution and delivery by the Fund of the Underwriting Agreement and the
performance by the Fund of its obligations thereunder do not and will not
violate or constitute a default under any law, rule, or regulation to which
the Fund is subject (except that I do not make the assumption set forth in
this clause with respect to Applicable Laws (as defined below)). As to any
facts material to the opinions expressed herein that I did not independently
establish or verify. I have relied upon oral or written statements and
representations of officers and other representatives of the Fund and others.
With respect to any agreement or instrument examined by me
which by its terms purports to be governed by the laws of any jurisdiction
other than the Federal laws of the United States or the laws of the State of
New York, my opinions are based solely upon my understanding of the plain
language of such agreement or instrument, and I do not express any opinion
with respect to the interpretation, validity, binding nature or enforceability
of any agreement or instrument which by its terms purports to be governed by
the laws of any jurisdiction other than the United States or the State of New
York.
As used herein, (a) the term "Applicable Laws" means the New
York Business Corporation Law and those laws, rules and regulations of the
State of New York and the United States of America that, in my experience, are
normally applicable to entities such as the Fund and transactions of the type
contemplated by the Underwriting Agreement, but without my having made any
special investigation concerning any other laws, rules or regulations;
provided that the term "Applicable Laws" does not include (1) the rules and
regulations of the National Association of Securities Dealers, Inc., (2) any
federal or state securities or blue sky laws other than the 1933 Act, the 1934
Act, the Investment
B-10
Company Act and the applicable rules and regulations thereunder to the extent
not excluded by item 3 below, (3) any antifraud laws under the 1933 Act or the
1934 Act as they are applicable to the Prospectus and the Registration
Statement or (4) any law, rule or regulation that may have become applicable
to the Fund as a result of the Underwriters' involvement with the transactions
contemplated by the Underwriting Agreement or because of any facts
specifically pertaining to the Underwriters; and (b) the term "Material
Agreement" means any contract included or required to be included as an
exhibit to the Registration Statement; and (c) the term "Governmental
Authority" means any New York or federal executive, legislative, judicial,
administrative or regulatory body under Applicable Laws and the New York Stock
Exchange.
The opinions set forth herein as to my knowledge are based
on my own knowledge and my discussions with the officers of the Fund and the
Adviser responsible for the matters discussed therein and my review of
documents of the Fund and the Adviser, and I have not made any search of the
public docket records of any court, governmental agency or body or
administrative agency.
I am admitted to the Bar in the State of New York, and I do
not express any opinion as to the laws of any other jurisdiction other than
the laws of the United States of America to the extent referred to
specifically herein.
Based upon the subject to the foregoing, I am of the opinion
that:
1. The Fund is not in violation of its Governing Documents,
or By-Laws and to my actual knowledge after reasonable inquiry, is not in
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.
2. The Fund is not in violation of any Material Agreement.
3. To my actual knowledge after reasonable inquiry, the Fund
is not in violation of any Applicable Law or any order, judgment or decree of
any Governmental Authority.
This opinion is furnished to you solely for your benefit and
the benefit of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without my prior express
written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
Xxxxx X. XxXxx
B-11
FORM OF RULE 10B-5 NEGATIVE ASSURANCE LETTER OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE FUND OPINION
Ladies and Gentlemen:
We have acted as counsel to [__], a Delaware statutory trust (the
"Fund"), in connection with the issuance and sale by the Fund [__] (the
"Shares"), pursuant to the Underwriting Agreement, dated as of [__], 2003 (the
"Underwriting Agreement"), between the Fund and Gabelli Funds, LLC (the
"Adviser") and you.
This letter is being furnished pursuant to Section [__] of
the Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in our opinion to you
dated the date hereof as counsel to the Fund with respect to the [__] (the
"Opinion").
In connection with this letter, we have examined [__] and
[__] such other documents as we have deemed necessary or appropriate. We have
also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Fund and such agreements, certificates of
public officials, certificates of officers or other representatives of the
Fund and others, and such other documents, certificates and records as we have
deemed necessary or appropriate.
In addition, we have participated in conferences with
officers and employees of the Fund, representatives of the independent
accountants for the Fund, and you and your counsel at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and, although we are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except to the
limited extent otherwise covered by paragraphs [3, 12 and 14] of our Opinion,
and have made no independent check or verification thereof, on the basis of
the foregoing, no facts have come to our attention that have led us to believe
that the Registration Statement, or any amendment or supplement thereto, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, or any amendment or supplement thereto, as of its issue date and
as of the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that we
express no belief with respect to the financial statements, schedules and
other financial information and statistical data included therein or excluded
therefrom or the exhibits to the Registration Statement.
This letter is furnished to you solely for your benefit, the
benefit of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without our prior
express written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
B-12
FORM OF RULE 10B-5 NEGATIVE ASSURANCE LETTER OF ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b) WITH RESPECT TO THE ADVISER OPINION
Ladies and Gentlemen:
We have acted as special counsel to Gabelli Funds, LLC, a New York
limited liability company (the "Adviser"), in connection with the issuance and
sale by [__] (the "Fund"), a Delaware statutory trust, of [__] (the "Shares"),
pursuant to the Underwriting Agreement, dated as of [__], 2003 (the
"Underwriting Agreement"), between the Fund, the Adviser and you.
This letter is being furnished pursuant to Section [__] of the
Underwriting Agreement. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in our opinion to you
dated the date hereof as special counsel to the Adviser with respect to the
[__] (the "Opinion").
In connection with this letter, we have examined [__] and [__] such
other documents as we have deemed necessary or appropriate. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Fund and such agreements, certificates of
public officials, certificates of officers or other representatives of the
Fund and others, and such other documents, certificates and records as we have
deemed necessary or appropriate.
In addition, we have participated in conferences with officers and
employees of the Adviser, with representatives of the independent accountants
for the Adviser and with you and your counsel at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to our
attention that have led us to believe that the Registration Statement or any
amendment or supplement thereto in effect as of the date hereof, at the time
it became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto in effect as of the date hereof, as of its
issue date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that we express no belief with respect to the financial statements, schedules
and other financial information and statistical data included therein or
excluded therefrom or the exhibits to the Registration Statement.
This letter is furnished to you solely for your benefit and the
benefit of the other Underwriters in connection with the closing under the
Underwriting Agreement occurring today and is not to be used, circulated,
quoted or otherwise referred to for any other purpose without our prior
express written permission, except to the extent that such use, circulation,
quotation, or reference is necessary so that the issuance of the Shares is not
treated as a "confidential transaction" within the meaning of Treasury
Regulations section 1.6011-4(b)(3).
Very truly yours,
B-13
FORM OF OPINION WITH RESPECT TO TAX MATTERS OF FUND'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
We have acted as counsel to [__], a statutory trust (the
"Fund") created under the Delaware Statutory Trust Act (the "Delaware
Statutory Trust Act"), in connection with the preparation, execution and
delivery of the Purchase Agreement, dated [__], 2003 (the "Purchase
Agreement"), by and among the Fund [__], [__](the "Advisor"), and you, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as representative of the several
underwriters named therein (the "Underwriters"), relating to the issuance and
sale by the Fund of [__]shares (the "Shares") of the Fund's common shares of
beneficial interest, par value $0.001 per share (the "Common Shares"). This
opinion is being delivered pursuant to Section 5(b) of the Purchase Agreement.
In rendering the opinion set forth herein, we have examined
and relied on originals or copies of the final Prospectus and Statement of
Additional Information of the Fund, as filed with the Commission on [__], 2003
pursuant to Rule 497(h) of the 1933 Act Rules and Regulations (collectively,
the "Prospectus") and such other documents as we have deemed necessary or
appropriate as a basis for the opinion set forth below.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as facsimile, electronic, certified
or photostatic copies, and the authenticity of the originals of such copies.
As to any facts material to the opinion expressed herein that we did not
independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Fund, the
Advisor, the Sub-Advisor and others and of public officials. Capitalized terms
used herein and not otherwise defined herein shall have the same meanings
herein as ascribed thereto in the Purchase Agreement.
In rendering our opinion we have considered the current
provisions of the Internal Revenue Code of 1986, as amended, Treasury
regulations promulgated thereunder, judicial authorities, interpretive rulings
of the Internal Revenue Service (the "Service"), and such other authorities as
we have considered relevant, all of which are subject to change or differing
interpretations, possibly on a retroactive basis. Moreover, there can be no
assurance that the opinion expressed herein will be accepted by the Service or
other relevant tax authorities or, if challenged, by a court of law. A change
in the authorities or in the accuracy or completeness of any of the
information, documents, certificates, records, statements, representations,
covenants, or assumptions on which our opinion is based could affect our
conclusions. This opinion is expressed as of the date hereof, and we are under
no obligation to supplement or revise our opinion to reflect any changes
(including changes that have retroactive effect) in applicable law or any
information, document, certificate, record, statement, representation,
covenant or assumption relied upon herein that becomes incorrect or untrue.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, although the
discussion in the Prospectus under the heading "Federal Income Tax Matters"
and in the Statement of Additional Information under the headings "U.S.
Federal Income Tax Matters," does not purport to discuss all possible United
States federal income tax consequences relating to the taxation of the Fund
and the purchase, ownership and disposition of the Common Shares, such
discussion constitutes, in all material respects, a fair summary of law and is
based on our understanding of the Fund's proposed operations as disclosed in
the Prospectus.
Except as set forth above, we express no other opinion. This opinion
is being furnished only to you in connection with the closing under the
Purchase Agreement occurring today and is solely for your
B-14
benefit and is not to be relied upon by any other person for any other purpose
without our prior written consent.
We advise you that the Firm has rendered legal advice to the Advisor,
other investment funds advised by the Advisor and certain other of their
respective affiliates in connection with various matters.
Very truly yours,
Exhibit B
FORM OF OPINION OF COUNSEL FOR UNDERWRITERS
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
