_________ Shares
Nuveen Ohio Dividend Advantage Municipal Fund 3
Common Stock
UNDERWRITING AGREEMENT
----------------------
March 25, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
First Union Securities, Inc.
McDonald Investments Inc., a KeyCorp Company
Xxxxxxx Xxxxx & Associates, Inc.
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen Ohio Dividend Advantage Municipal Fund 3, a
Massachusetts business trust (the "Fund"), and Nuveen Advisory Corp., a Delaware
corporation (the "Manager"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of _________
shares (the "Firm Shares") of its common shares of beneficial interest, $.01 par
value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional _______ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated February 20, 2002, an exchange traded fund custody agreement with
JPMorgan Chase Bank dated February 19, 2002 and a shareholder transfer agency
agreement with JPMorgan Chase
Bank dated February 19, 2002 and such agreements are herein referred to as the
"Management Agreement", the "Custodian Agreement" and the "Transfer Agency
Agreement", respectively. Collectively, the Management Agreement, the Custodian
Agreement and the Transfer Agency Agreement are herein referred to as the "Fund
Agreements". This Underwriting Agreement is herein referred to as the
"Agreement".
1. Registration Statement and Prospectus. The Fund has prepared and filed
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with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File No. 333-77030) under the 1933 Act and
the 1940 Act and may pursuant to the Rules and Regulations prepare and file an
additional registration statement relating to a portion of the Shares pursuant
to Rule 462(b) of the 1933 Act Rules and Regulations (collectively, the
"registration statement"), including a prospectus (including any statement of
additional information) relating to the Shares and a notification of
registration of the Fund as an investment company under the 1940 Act on Form
N-8A (the "1940 Act Notification"). The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective under the
1933 Act or, if the registration statement became effective under the 1933 Act
prior to the execution of this Agreement, as amended or supplemented, prior to
the execution of this Agreement and includes any information deemed to be
included by Rule 430A under the 1933 Act Rules and Regulations. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed under the 1933 Act and
must be declared effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Prospectus" as
used in this Agreement means the prospectus (including the statement of
additional information) in the form included in the Registration Statement or,
if the prospectus (including the statement of additional information) included
in the Registration Statement omits information in reliance on Rule 430A and
such information is included in a prospectus (including the statement of
additional information) filed with the Commission pursuant to Rule 497(h) under
the 1933 Act Rules and Regulations, the term "Prospectus" as used in this
Agreement means the prospectus (including the statement of additional
information) in the form included in the Registration Statement as supplemented
by the addition of the information contained in the prospectus (including the
statement of additional information) filed with the Commission pursuant to Rule
497(h). The term "Prepricing Prospectus" as used in this Agreement means the
prospectus (including the statement of additional information) subject to
completion in the form included in the registration statement at the time of the
initial filing of the registration statement with the Commission and as such
prospectus (including the statement of additional information) shall have been
amended from time to time prior to the date of the Prospectus, together with any
other prospectus (including any other statement of additional information)
relating to the Fund other than the Prospectus.
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The Fund has furnished the Representatives with copies of such
registration statement, each amendment to such registration statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject to
-------------------------------
all the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Manager herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Manager herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of _______ Additional Shares. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
upon the basis of the representations, warranties and agreements of the Fund and
the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Manager have been advised
------------------------
by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
----------------------------------------
(a) Delivery to the Underwriters of and payment to the Fund for
the Firm Shares shall be made at the office of Xxxxxxx Xxxxx Xxxxxx
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the
facilities of the Depository Trust Company or another mutually
agreeable facility, at 9:00 A.M., New York City time, on March 28,
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2002 (the "Closing Date"). The place of closing for the Firm Shares and
the Closing Date may be varied by agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters shall be made at
the aforementioned office of Xxxxxxx Xxxxx Barney Inc. at such time on
such date (an "Option Closing Date"), which may be the same as the
Closing Date, but shall in no event be earlier than the Closing Date
nor earlier than two nor later than three business days after the
giving of the notice hereinafter referred to, as shall be specified in
a written notice from you on behalf of the Underwriters to the Fund of
the Underwriters' determination to purchase a number, specified in said
notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Additional Shares may be
varied by agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares
shall be registered in such names and in such denominations as you
shall request prior to 1:00 P.M., New York City time, (i) in respect of
the Firm Shares, on the second business day preceding the Closing Date
and (ii) in respect of Additional Shares, on the day of the giving of
the written notice in respect of such Additional Shares. Such
certificates will be made available to you in New York City for
inspection and packaging not later than 9:00 A.M., New York City time,
on the business day next preceding the Closing Date or any Option
Closing Date, as the case may be. The certificates evidencing the Firm
Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the
case may be, against payment of the purchase price therefor in same-day
funds to the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
--------------------------------------
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering
of the Firm Shares may commence, the Fund will use its reasonable best
efforts to cause the Registration Statement or such post-effective
amendment to become effective under the 1933 Act as soon as possible.
If the Registration Statement has become effective and the Prospectus
contained therein omits certain information at the time of
effectiveness pursuant to Rule 430A of the 1933 Act Rules and
Regulations, the Fund will file a prospectus including such information
pursuant to Rule 497(h) of the 1933 Act Rules and Regulations, as
promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering
price of the Shares or the date the Prospectus is first used after the
effective date of the Registration Statement. If the Registration
Statement has become effective and the Prospectus contained therein
does not so omit such information, the Fund will file a Prospectus
pursuant to Rule 497 (c) or (j) of the 1933 Act Rules and Regulations
as promptly as practicable, but no later than the fifth business day
following the date of the later of the effective date of the
Registration Statement or
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the commencement of the public offering of the Shares after the effective date
of the Registration Statement. The Fund will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when the Registration
Statement or such post-effective amendment has become effective, (ii) when the
Prospectus has been timely filed pursuant to Rule 497(c) or Rule 497(h) of the
1933 Act Rules and Regulations or the certification permitted pursuant to Rule
497(j) of the 1933 Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus (or any amendment or supplement to any of the
foregoing) or for additional information, (ii) of the issuance by the
Commission, the National Association of Securities Dealers, Inc. (the "NASD"),
any state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined), of any
notice pursuant to Section 8(e) of the 1940 Act, of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation or contemplated initiation of any proceeding for any such purposes,
(iii) of receipt by the Fund, the Manager, any affiliate of the Fund or the
Manager or any representative or attorney of the Fund or the Manager of any
other material communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative agency or any
official relating to the Fund (if such communication relating to the Fund is
received by such person within three years after the date of this Agreement),
the Registration Statement, the 1940 Act Notification, the Prospectus, any
Prepricing Prospectus, any sales material (as hereinafter defined) (or any
amendment or supplement to any of the foregoing), this Agreement or any of the
Fund Agreements and (iv) within the period of time referred to in paragraph (f)
below, of any material adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations of the Fund
or the Manager or of the happening of any event which makes any statement of a
material fact made in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales material (as herein defined) (or any amendment or
supplement to any of the foregoing) untrue or which requires the making of any
additions to or changes in the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales materials (as herein defined) (or any
amendment or supplement to any of the foregoing) in order to state a material
fact required by the 1933 Act, the 1940 Act or the Rules and Regulations to be
stated therein or necessary in order to make the statements therein (in the case
of a prospectus, in light of the circumstances under which they were made) not
misleading or of the necessity to amend or supplement the Registration
Statement, the Prospectus, any Prepricing Prospectus or any sales material (as
herein defined) (or any amendment or supplement to any of the foregoing) to
comply with the 1933 Act, the 1940 Act, the Rules and Regulations or any other
law or order of any court or regulatory body. If at any time the
5
Commission, the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any sales
material (as hereinafter defined) (or any amendment or supplement to any of the
foregoing) or suspending the qualification of the Shares for offering or sale in
any jurisdiction, the Fund will use its reasonable best efforts to obtain the
withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies of
the registration statement and the 1940 Act Notification as originally filed
with the Commission and of each amendment thereto, including financial
statements and all exhibits thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed with
the Commission after the later of (x) one year from the date of this Agreement
and (y) the date on which the distribution of the Shares is completed) and will
also furnish to you, without charge, such number of conformed copies of the
registration statement as originally filed and of each amendment thereto (except
any post-effective amendment required by Rule 8b-16 of the 1940 Act Rules and
Regulations which is filed with the Commission after the later of (x) one year
from the date of this Agreement and (y) the date on which the distribution of
the Shares is completed), with or without exhibits, as you may reasonably
request.
(d) The Fund will not (i) file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus, any Prepricing Prospectus
or any sales material (as hereinafter defined) (or any amendment or supplement
to any of the foregoing) of which you shall not previously have been advised or
to which you shall reasonably object within a reasonable time after being so
advised or (ii) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund has
delivered to you, without charge, in such quantities as you have reasonably
requested, copies of each form of any Prepricing Prospectus. The Fund consents
to the use, in accordance with the provisions of the 1933 Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time, for such period as in the opinion of counsel
for the Underwriters a prospectus is required by the 1933 Act to be delivered in
connection with sales of Shares by any Underwriter or dealer, the Fund will
expeditiously deliver to each
6
Underwriter and each dealer, without charge, as many copies of the Prospectus
(and of any amendment or supplement thereto) as you may reasonably request. The
Fund consents to the use of the Prospectus (and of any amendments or supplements
thereto) in accordance with the provisions of the 1933 Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection with sales of Shares by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Fund or in the
opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and Regulations
or any other law, rule or regulation, the Fund will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate amendment or supplement thereto and will expeditiously furnish to
the Underwriters and dealers, without charge, such number of copies thereof as
they shall reasonably request. In the event that the Prospectus is to be amended
or supplemented, the Fund, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the Underwriters
in connection with the registration or qualification of the Shares for offering
and sale by the several Underwriters and by dealers under the securities or Blue
Sky laws of such jurisdictions as you may designate and will file such consents
to service of process or other documents necessary or appropriate in order to
effect such registration or qualification; provided that in no event shall the
Fund be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month period
commencing after the effective date of the Registration Statement and ending not
later than 15 months thereafter, as soon as practicable after the end of such
period, which earnings statement shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6 of
Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish to you
(i) as soon as available, a copy of each report of the Fund mailed to
shareholders or filed with
7
the Commission and (ii) from time to time such other information concerning
the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (other than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Manager to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Manager,
jointly and severally, agree to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Manager shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Manager has taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX") concurrently with the effectiveness of the
Registration Statement and to comply with the rules and regulations of such
exchange.
6. Representations and Warranties of the Fund and the Manager. The Fund and
----------------------------------------------------------
the Manager, jointly and severally, represent and warrant to each Underwriter
that:
8
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto
or filed pursuant to Rule 497 of the 1933 Act Rules and Regulations, complied
when so filed in all material respects with the provisions of the 1933 Act, the
1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Prospectus and any amendment or
supplement thereto when filed with the Commission under Rule 497 of the 1933 Act
Rules and Regulations and the 1940 Act Notification when originally filed with
the Commission and any amendment or supplement thereto when filed with the
Commission complied or will comply in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations and did not or will
not at any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Fund in writing by or on behalf of any Underwriter through you
expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly authorized
and validly issued, are fully paid and, except as described in the Registration
Statement, nonassessable and are free of any preemptive or similar rights; the
Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and, except as described in the Registration
Statement, nonassessable and free of any preemptive or similar rights and the
capital stock of the Fund conforms to the description thereof in the
Registration Statement and the Prospectus (and any amendment or supplement to
either of them).
(d) The Fund has been duly formed and is validly existing in good standing
as a business trust under the laws of The Commonwealth of Massachusetts, with
full power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them) and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register or
to qualify does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations of the
Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or any
of its properties is
9
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 by the 1933 Act, the 1940 Act or the Rules and Regulations
and there are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) or to be filed as
an exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or By-Laws or
in material violation of any material law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any material decree
of the Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official having
jurisdiction over the Fund or in breach or default in any material respect in
the performance of any obligation, agreement or condition contained in any
material bond, debenture, note or any other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which the Fund is a party or
by which it or any of its properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution, delivery or
performance of this Agreement nor any of the Fund Agreements by the Fund, nor
the consummation by the Fund of the transactions contemplated hereby or thereby
(A) requires any consent, approval, authorization or other order of or
registration or filing which has not yet been obtained or made with the
Commission, the NASD, any national securities exchange, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or administrative
agency or any official (except compliance with the securities or Blue Sky laws
of various jurisdictions which have been or will be effected in accordance with
this Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or By-Laws
of the Fund or (B) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any material agreement, indenture,
lease or other instrument to which the Fund is a party or by which it or any of
its properties may be bound or materially violates or will materially violate
any material statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Fund or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which any of
the property or assets of the Fund is subject.
(h) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (A) there has been no material,
adverse change in the condition (financial or other), business, properties, net
assets or results of operations of the Fund or business prospects (other than as
a result of a change in the financial markets generally)
10
of the Fund, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Fund which are material to
the Fund other than those in the ordinary course of its business as described in
the Prospectus (and any amendment or supplement thereto) and (C) there has been
no dividend or distribution of any kind declared, paid or made by the Fund on
any class of its common stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall audit the
Statement of Net Assets included in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), are an
independent public accounting firm as required by the 1933 Act, the 1940 Act and
the Rules and Regulations.
(j) The financial statements, together with related schedules and notes,
included in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) present fairly the financial position of the Fund
on the basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
except as disclosed therein; and the other financial and statistical information
and data included in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been declared
effective and the filing of the Prospectus under Rule 497 under the Rules and
Regulations, has taken all required action under the 1933 Act, the 1940 Act and
the Rules and Regulations to make the public offering and consummate the sale of
the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the Fund of its
obligations under this Agreement and the Fund Agreements have been duly and
validly authorized by the Fund and this Agreement and the Fund Agreements have
been duly executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the Fund in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles.
(m) Except as disclosed in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), the Fund has not incurred any liability or obligation, direct or
contingent that is material to the Fund and there has not been any change in the
capital stock or material increase in the short-term debt or long-term debt of
the Fund.
11
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public in either printed or electronic form any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prepricing Prospectus included
in Pre-Effective Amendment No. 1 to the Registration Statement, the
Prospectus and the advertisements/sales literature filed by Nuveen
Investments with the NASD on February 27, 2002.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles, to calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and records
requirements under the 1940 Act and the 1940 Act Rules and Regulations;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded account for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Common Shares in violation of federal
securities laws and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been
12
duly filed with the Commission and, at the time of filing thereof and at
the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the
Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Manager for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were so
filed. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended.
7. Representations and Warranties of the Manager. The Manager represents
---------------------------------------------
and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware, with full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them) and is duly registered
and qualified to conduct business and is in good standing in each
jurisdiction or place where the nature of its properties or conduct of its
business requires such registration or qualification, except where the
failure so to register or to
13
qualify would not have a material, adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Management Agreement for the Fund as contemplated by
the Registration Statement and the Prospectus (or any amendment or
supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of, and
the performance by the Manager of its obligations under, this Agreement and
the Management Agreement have been duly and validly authorized by the
Manager and this Agreement and the Management Agreement have been duly
executed and delivered by the Manager and constitute the valid and legally
binding agreements of the Manager, enforceable against the Manager in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement, the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the statements
attributable to the Manager, in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) complied and comply in
all material respects with the provisions of the 1933 Act, the 1940 Act,
the Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Manager, threatened against the Manager or to which any of
its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Manager or that reasonably should be expected to have a
material, adverse effect on the ability of the Manager to fulfill its
obligations hereunder or under the Management Agreement.
14
(g) Since the date as of which information is given in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), except as otherwise stated therein, (A) there has been no material,
adverse change in the condition (financial or other), business, properties,
net assets or results of operations or business prospects of the Manager,
whether or not arising from the ordinary course of business and (B) there
have been no transactions entered into by the Manager which are material to
the Manager other than those in the ordinary course of its business as
described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Manager has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this Agreement or
the Management Agreement by the Manager, nor the consummation by the
Manager of the transactions contemplated hereby or thereby (A) requires any
consent, approval, authorization or other order of or registration or
filing with the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other instrument
to which the Manager is a party or by which it or any of its properties may
be bound or materially violates or will materially violate any material
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Manager or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Manager pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which
any of the property or assets of the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), the Manager has not taken and will
not take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or
15
result in or which will constitute, stabilization or manipulation of the
price of the Common Shares in violation of federal securities laws and the
Manager is not aware of any such action taken or to be taken by any
affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Manager will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
--------------------------------
(a) The Fund and the Manager, jointly and severally, agree to indemnify
and hold harmless each of you and each other Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, from and against any and all
losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Shares, if it is shown that a copy
of the Prospectus, as then amended or supplemented, which would have cured
any defect giving rise to such loss, claim, damage, liability or expense
was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered, at or prior to the
confirmation of the sale of such Shares to such person and such Prospectus,
amendments and supplements had been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit
proper delivery. The foregoing indemnity agreement shall be in addition to
any liability which the Fund or the Manager may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought
16
against the Fund or the Manager, such Underwriter or such controlling
person shall promptly notify the Fund or the Manager and the Fund or the
Manager shall assume the defense thereof, including the employment of
counsel and the payment of all fees and expenses. Such Underwriter or any
such controlling person shall have the right to employ separate counsel in
any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or controlling person unless (i) the Fund or the
Manager have agreed in writing to pay such fees and expenses, (ii) the Fund
and the Manager have failed within a reasonable time to assume the defense
and employ counsel or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Underwriter
or such controlling person and the Fund or the Manager and such Underwriter
or such controlling person shall have been advised by its counsel that
representation of such indemnified party and the Fund or the Manager by the
same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests
between them (in which case the Fund and the Manager shall not have the
right to assume the defense of such action, suit or proceeding on behalf of
such Underwriter or such controlling person). It is understood, however,
that the Fund and the Manager shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any
local counsel if there is any action, suit or proceeding in more than one
jurisdiction) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Xxxxxxx Xxxxx
Xxxxxx Inc. and that, subject to the requirements of 1940 Act Release No.
11330, all such fees and expenses shall be reimbursed promptly as they are
incurred. The Fund and the Manager shall not be liable for any settlement
of any such action, suit or proceeding effected without the written consent
of the Fund or the Manager, but if settled with such written consent or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Fund and the Manager agree to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, liability, damage or
expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Manager, their trustees, directors, any
officers of the Fund who sign the Registration Statement and any person who
controls the Fund or the Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Manager to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them). If any action, suit or proceeding shall be brought against
the Fund or the Manager, any of their trustees, directors, any such officer
or any such controlling person, based on
17
the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to the Fund by paragraph
(b) above (except that if the Fund or the Manager shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's
expense) and the Fund and the Manager, their trustees, directors, any such
officer and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Manager
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Fund as set forth in the table on the cover page of the
Prospectus bear to the total payments received by the Underwriters with
respect to the Firm Shares as set forth in the table on the cover page of
the Prospectus. The relative fault of the Fund and the Manager on the one
hand (treated jointly for this purpose as one person) and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Fund, the Manager and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as
18
a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with defending any such
action, suit or proceeding. Notwithstanding the provisions of this Section
8, no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 8 are several in proportion to the
respective number of Firm Shares set forth opposite their names in Schedule
I (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the Manager set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the Manager or their
trustees, directors or officers or any person controlling the Fund or the
Manager, (ii) acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any Underwriter or
to the Fund, the Manager or their trustees, directors or officers or any
person controlling any Underwriter, the Fund or the Manager shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund,
19
the Manager or any of their officers in any certificate delivered to the
Representatives or their counsel pursuant to this Agreement and to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Manager or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) You shall have received on the Closing Date an opinion of Xxxx,
Xxxx & Xxxxx LLC, special counsel for the Fund and Manager, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Fund is a business trust duly established, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify does not have a
material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the Fund;
(ii) The authorized and outstanding capital stock of the Fund
is as set forth in the Registration Statement and Prospectus (or any
amendment or supplement thereto through the date of the opinion); and
the description of the authorized capital stock of the Fund contained
in the Prospectus (or any amendment or supplement thereto through the
date of the opinion) under the caption "Description of Shares" conforms
in all material respects as to legal matters to the terms thereof
contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable, except that, as
described in the Prospectus under the heading, "Certain Provisions in
the Declaration of Trust," shareholders of the Fund may under certain
circumstances be held personally liable for its obligations;
20
(iv) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and not subject to any preemptive rights that entitle or
will entitle any person to acquire any Shares upon the issuance thereof
by the Fund, except that, as described in the Prospectus under the
heading, "Certain Provisions in the Declaration of Trust," shareholders
of the Fund may under certain circumstances be held personally liable
for its obligations;
(v) The form of certificate for the Shares is in due and
proper form and complies with the requirements of all applicable laws
and the AMEX;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization, execution and
delivery by the other parties thereto and that the performance of the
Underwriting Agreement and the Fund Agreements by the other parties
thereto will not violate law, agreements to which such other parties or
their properties are subject or orders applicable to such other parties,
constitute the valid, legal and binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
enforcement of rights to indemnity hereunder may be limited by Federal
or state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles, whether
enforcement is considered in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Manager, enforceable against the Manager in accordance
with its terms, except as enforcement of rights to indemnity hereunder
may be limited by Federal or state securities laws or principles of
public policy and subject to the qualification that the enforceability
of the Manager's obligations hereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles, whether enforcement is considered in a proceeding in equity
or at law;
(viii) The Fund Agreements comply in all material respects with
all applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of Trust
or By-Laws or to the best knowledge of such counsel after reasonable
inquiry, is not in material default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of
21
indebtedness, except as may be disclosed in the Prospectus (and any
amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official is
required on the part of the Fund (except as have been obtained under
the 1933 Act and the 1934 Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of
the Shares) for the valid issuance and sale of the Shares to the
Underwriters as contemplated by this Agreement, performance of the Fund
Agreements or this Agreement by the Fund, the consummation by the Fund
of the transactions contemplated thereby or hereby or the adoption of
the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend Reinvestment
Plan violates the Declaration of Trust or By-Laws of the Fund or any
material agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties is bound that
is an exhibit to the Registration Statement or that is known to such
counsel after reasonable inquiry or, to the best of such counsel's
knowledge after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such counsel's
knowledge after reasonable inquiry, will any such action result in any
violation of any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Fund or any of its properties,
except that, in the published opinion of the Commission, the
indemnification provisions in this Agreement and the Fund Agreements,
insofar as they relate to indemnification for liabilities arising under
the 1933 Act, are against public policy as expressed in the 1933 Act
and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497 of
the 1933 Act Rules and Regulations prior to the date of such opinion
has been made in accordance with Rule 497;
22
(xiii) The Fund is duly registered with the Commission under the 1940
Act as a closed-end, non-diversified management investment company and all
action has been taken by the Fund as required by the 1933 Act and the 1940
Act and the Rules and Regulations in connection with the issuance and sale
of the Shares to make the public offering and consummate the sale of the
Shares as contemplated by this Agreement;
(xiv) The statements made in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them through the
date of the opinion) under the caption "Tax Matters" have been reviewed by
such counsel and to the extent they describe or summarize tax laws,
doctrines or practices of the United States, present a fair and accurate
description or summary thereof as of the date of the opinion;
(xv) The statements in the Registration Statement and Prospectus
(and any amendment or supplement to either of them through the date of the
opinion), insofar as they are descriptions of contracts, agreements or
other legal documents or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the opinion)
comply as to form in all material respects with the requirements of the
1933 Act, the 1940 Act and the Rules and Regulations (except that no
opinion need be expressed as to the financial statements and the notes
thereto and the schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus (or
any amendment or supplement thereto through the date of the opinion), there
are no actions, suits or other legal or governmental proceedings pending or
expressly threatened against the Fund (through the date of the opinion) and
(B) there are no material agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them through the date of the opinion) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as the
case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance, administrative
or governmental rule or regulation applicable to the Fund or of any decree
of the Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official having
jurisdiction over the Fund; and
23
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the American Stock Exchange and the Fund's
registration statement on Form 8-A under the 1934 Act is effective.
Such counsel shall also state that although counsel has not undertaken,
except as otherwise indicated in their opinion, to determine independently and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including review
and discussion of the contents thereof, and nothing has come to the attention of
such counsel that has caused it to believe that the Registration Statement, at
the time the Registration Statement became effective or the Prospectus, as of
its date and as of the Closing Date or the Option Closing Date, as the case may
be, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no view with respect to the financial statements and the
notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may limit such opinion to matters
involving the application of the laws of the State of Ohio, The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and to the
extent specified in such opinion, such counsel may rely, as to matters involving
the application of laws of The Commonwealth of Massachusetts, upon the opinion
of Xxxxxxx Xxxx LLP and, as to matters involving the application of laws of the
State of Ohio, upon the opinion of Squire, Xxxxxxx & Xxxxxxx LLP or, as to other
matters, other counsel of good standing whom they believe to be reliable and who
are satisfactory to the Representatives; provided that (X) such reliance is
expressly authorized by the opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (Y) Xxxx, Xxxx & Xxxxx LLC states in
their opinion that they believe that they and the Underwriters are justified in
relying thereon.
(c) You shall have received on the Closing Date an opinion of Xxxxxxx X.
Xxxxxxxxx, Vice President, Assistant Secretary and General Counsel for the
Manager, dated the Closing Date and addressed to you, as Representatives of
the several Underwriters, to the effect that:
(i) The Manager is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and
24
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or to qualify does not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of the Manager;
(ii) The Manager is duly registered with the Commission under the
Advisers Act as an investment adviser and is not prohibited by the Advisers
Act, the 1940 Act or the Rules and Regulations under such acts from acting
for the Fund under the Management Agreement as contemplated by the
Prospectus (and any amendment or supplement thereto);
(iii) The Manager has corporate power and authority to enter into this
Agreement and the Management Agreement and this Agreement and the
Management Agreement have been duly authorized, executed and delivered by
the Manager and the Management Agreement is a valid, legal and binding
agreement of the Manager, enforceable against the Manager in accordance
with its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws
or principles of public policy and subject to the qualification that the
enforceability of the Manager's obligations hereunder and thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles;
(iv) The Management Agreement complies in all material respects with
all applicable provisions of the Advisers Act, the 1940 Act and the
Advisers Act Rules and Regulations and the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Manager of this
Agreement or the Management Agreement nor the consummation by the Manager
of the transactions contemplated hereunder or thereunder constitutes or
will constitute a breach of or a default under the Certificate of
Incorporation or By-Laws of the Manager or any material agreement,
indenture, lease or other instrument to which the Manager is a party or by
which it or any of its properties is bound that is known to such counsel
after reasonable inquiry, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets of the
Manager, nor will any such action result in any violation of any existing
material law, regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to the Fund or
any of its properties;
(vi) The description of the Manager and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the 1933 Act, the 1940 Act and
the Rules and Regulations;
25
(vii) To the best knowledge of such counsel after reasonable inquiry,
other than as described or contemplated in the Prospectus (and any
amendment or supplement thereto), there are no actions, suits or other
legal or governmental proceedings pending or threatened against the Manager
or to which the Manager or any of its property is subject which are
required to be described in the Registration Statement or Prospectus (or
any amendment or supplement to either of them);
(viii) The Manager owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders, approvals
and other authorizations as are necessary for the Manager to carry on its
business as contemplated in the Prospectus (and any amendment or supplement
thereto); and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative or
other governmental body, agency or official is required on the part of the
Manager for the performance of this Agreement or the Management Agreement
by the Manager or for the consummation by the Manager of the transactions
contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe that the
Registration Statement at the time it became effective or the Prospectus,
as of its date and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date or the
Option Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Manager as to laws of any jurisdiction other
than the United States, the State of
26
Illinois and the Delaware General Corporation Law statute, provided that
(X) each such local counsel is acceptable to the Representatives, (Y) such
reliance is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is in form and
substance satisfactory to them and their counsel and (Z) counsel shall
state in his view that he believes that he and the Underwriters are
justified in relying thereon.
(d) (i) You shall have received on the Closing Date an opinion of Squire,
Xxxxxxx & Xxxxxxx LLP, special Ohio counsel to the Fund, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to the
effect that:
The statements contained in the Prospectus under the headings
"Risks - Concentration Risk" and "Tax Matters - Ohio Tax Matters" and in
Appendix D to the statement of additional information under the headings
"Factors Pertaining to Ohio" and "Ohio Tax Matters", to the extent that
such statements constitute matters of law or legal conclusions, provide a
fair and accurate summary of such law or conclusions. Such statements are
based on current law and special counsel's understanding of the Fund's
proposed operations, as disclosed in the Prospectus.
Such counsel shall also state that although special counsel does not pass
upon or assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus (other
than to the extent set forth above), and has not made any independent check or
verification thereof, no facts have come to the attention of such special
counsel which would lead it to believe that the material contained in the
Prospectus under the headings "Risks - Concentration Risk" and "Tax Matters -
Ohio Tax Matters" and in Appendix D to the statement of additional information
under the headings "Factors Pertaining to Ohio" and "Ohio Tax Matters", as of
their respective dates or the Closing Date or the Option Closing Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that any statement contained in any amendment or supplement to the Prospectus or
statement of additional information under such headings, as of its respective
date, and as of the Closing Date or the Option Closing Date, contained any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such special counsel may rely as to matters of fact,
to the extent such special counsel deems proper, on certificates of responsible
officers of the Fund and of the Manager, and of public officials.
(ii) You shall have received on the Closing Date a comfort letter,
substantially in the form heretofore approved by you, from Xxxxxxx and Xxxxxx,
special counsel to the Fund, dated the Closing Date and addressed to you, as
Representatives of the
27
several Underwriters, with respect to the information presented in Appendix B to
the statement of additional information under the heading "Taxable Equivalent
Yield Tables".
(e) That you shall have received on the Closing Date, an opinion, dated the
Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to such matters as the Underwriters may require and
the Fund, the Manager and their respective counsels shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the Registration Statement
or prohibiting or suspending the use of the Prospectus (or any amendment or
supplement thereto) or any Prepricing Prospectus or any sales material shall
have been issued and no proceedings for such purpose or for the purpose of
commencing an enforcement action against the Fund, the Manager or, with respect
to the transactions contemplated by the Prospectus (or any amendment or
supplement thereto) and this Agreement, any Underwriter, may be pending before
or, to the knowledge of the Fund, the Manager or any Underwriter or in the
reasonable view of counsel to the Underwriters, shall be threatened or
contemplated by the Commission at or prior to the Closing Date and that any
request for additional information on the part of the Commission (to be included
in the Registration Statement, the Prospectus or otherwise) be complied with to
the satisfaction of the Representatives, (ii) there shall not have been any
change in the capital stock of the Fund nor any material increase in debt of the
Fund from that set forth in the Prospectus (and any amendment or supplement
thereto) and the Fund shall not have sustained any material liabilities or
obligations, direct or contingent, other than those reflected in the Prospectus
(and any amendment or supplement thereto); (iii) since the date of the
Prospectus there shall not have been any material, adverse change in the
condition (financial or other), business, prospects, properties, net assets or
results of operations of the Fund or the Manager; (iv) the Fund and the Manager
must not have sustained any material loss or interference with its business from
any court or from legislative or other governmental action, order or decree or
from any other occurrence not described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them); and (v) all of
the representations and warranties of the Fund and the Manager contained in this
Agreement shall be true and correct on and as of the date hereof and as of the
Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change or any development involving a prospective change
in or affecting the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Manager not
contemplated by the Prospectus (and
28
any amendment or supplement thereto), which in your opinion, as
Representatives of the several Underwriters, would materially, adversely
affect the market for the Shares or (ii)any event or development relating
to or involving the Fund, the Manager or any officer or trustee or director
of the Fund or the Manager which makes any statement of a material fact
made in the Prospectus (or any amendment or supplement thereto) untrue or
which, in the opinion of the Fund and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order to state a
material fact required by the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law to be stated therein or necessary in order to
make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, if amending or
supplementing the Prospectus (or any amendment or supplement thereto) to
reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially, adversely affect
the market for the Shares.
(i) That neither the Fund nor the Manager shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with
by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of the president or any vice president and of the
controller or treasurer of each of the Fund and the Manager certifying that
(i) the signers have carefully examined the Registration Statement, the
Prospectus (and any amendments or supplements to either of them) and this
Agreement, (ii) the representations and warranties of the Fund (with
respect to the certificates from such Fund officers) and the
representations of the Manager (with respect to the certificates from such
officers of the Manager) in this Agreement are true and correct on and as
of the date of the certificate as if made on such date, (iii) since the
date of the Prospectus (and any amendment or supplement thereto) there has
not been any material, adverse change in the condition (financial or
other), business, prospects (other than as a result of a change in the
financial markets generally), properties, net assets or results of
operations of the Fund (with respect to the certificates from such Fund
officers) or the Manager (with respect to the certificates from such
officers of the Manager), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Manager (with respect to the
certificates from such officers of the Manager) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Manager (with respect to
certificates from such officers of the Manager) has performed and complied
with all agreements that this Agreement requires it to perform by such
Closing Date, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Manager (with respect to the certificate
29
from such officers of the Manager) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) That the Fund and the Manager shall have furnished to you such
further certificates, documents and opinions of counsel as you shall
reasonably request (including certificates of officers of the Fund and the
Manager).
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Manager and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by the
Fund or the Manager to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund and the Manager contained herein
on and as of the Option Closing Date as though made on any Option Closing
Date, (ii) satisfaction on and as of any Option Closing Date of the
conditions set forth in this Section 9 except that, if any Option Closing
Date is other than the Closing Date, the certificates, opinions and letters
referred to in paragraphs (b), (c), (d), (e), (f), (j), (k) and this
paragraph shall be dated the Option Closing Date in question and the
opinions and letters called for by paragraphs (b), (c), (d) and (e) shall
be revised to reflect the sale of Additional Shares and (iii) the absence
of circumstances on or prior to the Option Closing Date which would permit
termination of this Agreement pursuant to Section 11 hereof if they existed
on or prior to the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
30
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 20 of the
Xxxxxxx Xxxxx Xxxxxx Master Agreement Among Underwriters, to purchase Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Fund for the purchase of
such Firm Shares by one or more non-defaulting Underwriters or other party or
parties approved by you and the Fund are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Firm Shares which a
defaulting Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund or the Manager by notice to the Fund or the Manager if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in the Shares or securities generally on the NYSE, AMEX, Nasdaq National
Market or the Nasdaq Stock Market shall have been suspended or materially
limited, (ii) additional material governmental restrictions not in force on the
date of this Agreement have been imposed upon trading in securities generally or
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities or (iii) any outbreak or
material escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions, occurs, the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Fund or the Manager by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
31
12. Expenses. The Fund agrees to pay the following costs and expenses and
--------
all other costs and expenses incident to the performance by the Fund of its
obligations hereunder: (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including postage,
air freight and the cost of counting and packaging) of copies of the Prospectus,
the Prepricing Prospectus, any sales material and all amendments or supplements
to the Prospectus as may be requested for use in connection with the offering
and sale of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
Memoranda and all other company-authorized agreements or other documents printed
(or reproduced) and delivered in connection with the offering of the Shares, (h)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the NASD and incurred with
respect to the review of the offering of the Shares by the NASD, (i) the
registration of the Shares under the 1934 Act and the listing of the Shares on
the AMEX, and (j) an amount equal to (A) $20,000 plus (B) $.0025 per Share for
each Share in excess of 2,000,000 sold pursuant to this Agreement, payable no
later than 45 days from the date of this Agreement to the Underwriters in
partial reimbursement of their expenses (but not including reimbursement for the
cost of one tombstone advertisement in a newspaper that is one-quarter of a
newspaper page or less in size) in connection with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will pay the
costs and expenses of the Fund set forth above in this Section 12 (a) through
(i), and reimbursements of Underwriter expenses in connection with the offering
shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
-----------------------------------------
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the tenth paragraph, the first sentence of the twelfth paragraph, the
seventeenth paragraph and the eighteenth paragraph constitute the only
information relating to any Underwriter furnished to the Fund in writing by or
on behalf of the
32
Underwriters through you as such information is referred to herein, expressly
for use in the Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Manager, c/o Nuveen
Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
X. Berkshire or (b) if to you, as Representatives of the Underwriters, at the
office of Xxxxxxx Xxxxx Barney Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Manager, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of the Fund under this
Agreement are not binding upon such officer, any of the trustees or the
shareholders individually but are binding only upon the assets and property of
the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
33
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN OHIO DIVIDEND ADVANTAGE
MUNICIPAL FUND 3
By:_____________________________
Title: Vice President
NUVEEN ADVISORY CORP.
By: ____________________________
Title: Vice President
34
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
First Union Securities, Inc.
McDonald Investments Inc., a KeyCorp Company
Xxxxxxx Xxxxx & Associates, Inc.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX BARNEY INC.
By: ___________________________________
Title:
35
SCHEDULE I
Name of Underwriters Number of Common Shares
-------------------- -----------------------
Total
