[ ] Shares
--
Nuveen Tax-Advantaged Floating Rate Fund
Common Shares
UNDERWRITING AGREEMENT
March [ ], 2005
--
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Nuveen Investments, LLC
Deutsche Bank Securities Inc.
Advest, Inc.
H&R Block Financial Advisors, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated.
KeyBanc Capital Markets,
a division of McDonald Investments, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets Corporation.
Xxxxxx, Xxxxxxxx & Company, Incorporated.
SunTrust Capital Markets, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
The undersigned, Nuveen Tax-Advantaged Floating Rate Fund, a Massachusetts
business trust, (the "Fund"), Nuveen Asset Management, Inc., a Delaware
corporation (the "Adviser"), and Spectrum Asset Management, Inc., a
1
Connecticut corporation (the "Sub-Adviser") 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 of its common shares of beneficial interest, $0.01 par value per share
(the "Firm Shares"), to the several Underwriters. The Fund also proposes to sell
upon the terms and conditions contained in Section 2 hereof, up to [ ]
--
additional common shares (the "Additional Shares" which together with the Firm
Shares are hereinafter collectively referred to as the "Shares").
The Fund, the Adviser and the Sub-Adviser 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 has entered into an investment management agreement with the
Adviser dated February 25, 2005 (the "Investment Management Agreement"), a
Master Custodian Agreement with State Street Bank and Trust Company ("State
Street") dated February 25, 2005 (the "Custodian Agreement"), a Transfer Agency
Agreement with State Street dated as of October 7, 2002, effective as of [ ],
--
2005 (the "Transfer Agency Agreement"), an Expense Reimbursement Agreement with
the Adviser dated February 24, 2005 (the "Expense Reimbursement Agreement and a
Structuring Fee Agreement with X.X. Xxxxxxx & Sons, Inc. dated March 31, 2005
(the "Structuring Fee Agreement"). In addition, the Fund has adopted a dividend
reinvestment plan (the "Dividend Reinvestment Plan"), pursuant to which holders
of Shares shall have their dividends automatically reinvested in additional
common shares of the Fund unless they elect to receive such dividends in cash.
Collectively, the Investment Management Agreement, Custodian Agreement, Transfer
Agency Agreement, the Expense Reimbursement Agreement, the Structuring Fee
Agreement and the Dividend Reinvestment Plan are herein referred to as the "Fund
Agreements." The Adviser
2
has entered into a Sub-Advisory Agreement with Spectrum Asset Management, Inc.,
dated March 24, 2005 (the "Sub-Advisory Agreement"). This Underwriting Agreement
is herein referred to as the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared and filed
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. 333-122276 under the 1933 Act) (the
"registration statement"), including a prospectus and 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 (File No.
811-21705 under the 1940 Act, the "1940 Act Notification"), 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 (a "Rule 462 registration statement"). The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective under the 1933 Act or, if the registration statement
became effective under the 1933 Act prior to the execution of this Agreement, as
amended or supplemented thereto immediately prior to the execution of this
Agreement and including 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 Shares may commence, the term "Registration Statement" as used
in this Agreement means the Registration Statement as amended by said
post-effective amendment. If the Fund has filed a Rule 462 registration
3
statement, or if such a filing is contemplated at the time this Agreement is
executed, then the reference herein to the term "Registration Statement" shall
include such Rule 462 registration statement. The term "Prospectus" as used in
this Agreement means the prospectus and statement of additional information in
the forms included in the Registration Statement or, if the prospectus and
statement of additional information included in the Registration Statement omit
information in reliance on Rule 430A under the 1933 Act Rules and Regulations
and such information is included in a prospectus and 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 and statement of additional information in the forms 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 and 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 and 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. The
terms "Registration Statement," "Prospectus" and "Prepricing Prospectus" shall
also include any financial statements and other information included or
incorporated by reference therein.
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
4
the basis of the representations, warranties and agreements of the Fund, the
Adviser and the Sub-Adviser 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 of $14.325 per Share
(the "Price per Share"), the number of Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
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, the Adviser and the
Sub-Adviser 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 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 A.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),
Additional Shares. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Shares.
Upon any exercise of the over-allotment option, upon the basis of the
representations, warranties and agreements of the Fund, the Adviser and the
Sub-Adviser, 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 11 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund, the Adviser and the Sub-Adviser have
been advised by you that the
5
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
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 and compensation of the Underwriters with respect thereto shall
be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx at 8:00 a.m. central time on March 31,
2005 (the "Closing Date"). The place of closing for the Firm Shares and the
Closing Date may be varied by agreement between the Representatives and the
Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and compensation of
the Underwriters with respect thereto shall be made at the aforementioned
office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP 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.
6
(c) The Shares shall be registered in such names and in such
denominations as the Underwriters shall request prior to 1:00 P.M., New
York City time, (i) with respect to the Firm Shares, on the second business
day preceding the Closing Date (ii) with respect to the Additional Shares,
on the day of the giving of the written notice in respect of such
Additional Shares. 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 immediately available funds.
5. Agreements of the Fund, the Adviser and the Sub-Adviser. The Fund, the
Adviser, and the Sub-Adviser 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 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 or
certification pursuant to Rule 497(c) or (j), as the case may be, of the
1933 Act
7
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will confirm such advice
in writing (i) when the Registration Statement or such post-effective
amendment has become effective, (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or (iii) when 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, (and in the case of (iii)(B) below, with respect to
communications received by the Adviser or the Sub-Adviser) the Adviser or
the Sub-Adviser, will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for an amendment of or a supplement to the Registration Statement, the
Prospectus or any Prepricing Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any 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 (A)
the Fund, any affiliate of the Fund or any representatives or attorney of
the Fund of any other material communication from the Commission, or (B)
the Fund, the Adviser, the
8
Sub-Adviser, any affiliate of the Fund, the Adviser or the Sub-Adviser or
any representatives or attorney of the Fund, the Adviser or the Sub-Adviser
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, in the
case of either clause (A) or (B), 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) or 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
any event which should reasonably be expected to have a material adverse
effect on the ability of the Adviser or the Sub-Adviser to perform its
obligations under this Agreement, the Investment Management Agreement or
the Sub-Advisory Agreement, as the case may be, (other than as a result of
changes in market conditions generally) 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
(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 material
(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 or any sales material, in
light of the circumstances under which they were made) not misleading or of
the necessity to amend or supplement
9
the Registration Statement, the Prospectus, any Prepricing Prospectus or
any sales material (or any amendment or supplement to any of the foregoing)
to comply with the 1933 Act, the 1940 Act, the Rules and Regulations or any
other law or order of any court or regulatory body. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, prohibiting or suspending the use of the Prospectus
or any sales material (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, the Adviser and the Sub-Adviser will
use their reasonable best efforts to obtain the withdrawal of such order at
the earliest possible time. If at any time the NASD, any national
securities exchange, any state securities commission, 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 or any sales material (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, the Adviser and the
Sub-Adviser will use their respective 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 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
10
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 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 the Registration Statement or make any amendment or supplement
to the Prospectus, any Prepricing Prospectus or any sales material (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 1933 Act, the 1940 Act or
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
11
expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Fund consents to the use of the
Prospectus (and of any amendments or supplements thereto) in accordance
with the provisions of the 1933 Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection with sales of Shares by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the Fund
or in the opinion of counsel for the Underwriters is required to be set
forth in the Registration Statement or the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading or if it is
necessary to supplement or amend the Registration Statement or 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
notify you of such event, prepare and, subject to the provisions of
paragraph (d) above, promptly 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 may reasonably request. In the event that the Registration Statement
or 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
12
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 subjects 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 subject.
(h) Each of the Adviser and the Sub-Adviser will make generally
available to the Underwriters its staff, for assistance with roadshow
presentations as the Underwriters may reasonably request.
(i) As soon as practicable, but in no event later than the last day of
the 18th full calendar month following the calendar quarter in which the
effective date of the Registration Statement falls, the Fund will make
generally available to its security holders an earnings statement, which
need not be audited, 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.
(j) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(k) During the period of three years hereafter, the Fund will furnish
or will have furnished to you (i) as soon as available, a copy of each
report of the Fund mailed to shareholders or filed with the Commission or
furnished to the NYSE and (ii) from time to time such other information
concerning the Fund as you may reasonably request.
(l) If this Agreement shall terminate or be terminated after execution
pursuant to any provisions hereof
13
(otherwise than pursuant to the second paragraph of Section 11 hereof or by
notice given by you terminating this Agreement pursuant to Section 12
hereof) or if this Agreement shall be terminated by the Underwriters
because of (i) any failure or refusal on the part of the Fund, the Adviser
or the Sub-Adviser to comply with any term or fulfill any of the conditions
of this Agreement required to be complied with or fulfilled by them or (ii)
the non-occurrence of any other condition (in either case, other than by
reason of default by the Underwriters in the performance of their
obligations under this Agreement), the Fund, the Adviser and the
Sub-Adviser, jointly and severally, agree to reimburse the Representatives
for all out-of-pocket expenses not to exceed the amounts set forth in
Section 13 of this Agreement (including reasonable fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(m) The Fund will direct the investment of the net proceeds of the
offering of the Shares (i) in accordance with the description set forth in
the Prospectus and (ii) in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(n) 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.
(o) The Fund will use its reasonable best efforts to have the shares
listed, subject to notice of issuance, on the NYSE concurrently with the
effectiveness of the Registration Statement and to comply with the rules or
regulations of such exchange.
14
(p) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund, none of the Fund, the Adviser, the
Sub-Adviser or their respective officers, directors or trustees will sell,
contract to sell or otherwise dispose of, any common stock or any
securities convertible into or exercisable or exchangeable for common stock
or grant any options or warrants to purchase common stock, for a period of
180 days after the date of the Prospectus, without the prior written
consent of X.X. Xxxxxxx & Sons, Inc.
(q) Except as stated in this Agreement and in the Prospectus, none of
the Fund, the Adviser or the Sub-Adviser will 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 Shares.
(r) The Fund will direct the investment of the proceeds of the
offering of the Shares so as to comply with the requirements of Subchapter
M of the Internal Revenue Code of 1986, as amended (the "Code"), to qualify
as a regulated investment company under the Code.
6. Representations and Warranties of the Fund, the Adviser and the
Sub-Adviser. The Fund, the Adviser, and the Sub-Adviser jointly and severally,
represent and warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations and
the Commission has not issued any order preventing or suspending the use of
the Prepricing Prospectus.
(b) The registration statement, in the form in
15
which it became or becomes effective and also in such form as it may be
when any post-effective amendment thereto shall become effective, 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 each of the Registration
Statement and the Prospectus (or any supplement or amendment to either of
them) 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 the
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 and the
Prospectus (and any amendment or supplement to either of them) 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 shares of capital stock of the Fund have been
duly authorized and validly issued, are fully paid and (except as described
in the Prospectus under "Certain Provisions in the Declaration of
Trust")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
Prospectus under "Certain Provisions in the Declaration of Trust")
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 or the Prospectus (or any
16
amendment or supplement to either of them). Except for the Shares and the
shares of common stock issued in accordance with Section 14(a) of the 1940
Act, no other shares of capital stock are issued or outstanding and the
capitalization of the Fund conforms in all respects to the description
thereof in the Registration Statement and the Prospectus (or 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 business trust power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them) and is duly registered and qualified to conduct 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,
either alone or in the aggregate, does not have or would not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), business, properties, business prospects, net assets or results
of operations, whether or not occurring in the ordinary course of business
(a "Material Adverse Effect") of the Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund, or to which the Fund
or any of its properties is subject, that are required to be described in
the Registration Statement or the Prospectus (and any amendment or
supplement to either of them) but are not described as required and there
are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) or to be
filed as an exhibit to the
17
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
("Declaration"), by-laws or other organizational documents or 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 other agency or any body or official having jurisdiction over
the Fund or in breach or default in the performance of any obligation,
agreement or condition contained in any 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, except for such violation or such breach or
default that, either alone or in the aggregate, does not have or would not
reasonably be expected to have a Material Adverse Effect on the Fund.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or
order of or registration or filing which has not yet been obtained or made
with the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Fund (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)
18
or conflicts or will conflict with or constitutes or will constitute a
breach of the Declaration, by-laws, or other organizational documents of
the Fund or (ii) (A) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under any agreement, indenture, lease
or other instrument to which the Fund is a party or by which it or any of
its properties may be bound or (B) violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Fund pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, except for such conflict,
breach, default, violation or lien, charge or encumbrance that, either
alone or in the aggregate, does not have or would not reasonably be
expected to have a Material Adverse Effect on the Fund. As of the date
hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (ii) there have been no transactions entered into by
the Fund other than those in the ordinary course of its business as
described in the Prospectus (and any amendment or supplement thereto),
except for such transactions that, either alone or in the aggregate, do not
have or would not reasonably be expected to have a Material Adverse Effect
on the Fund and (iii) there has been no dividend or
19
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 the Statement
of Assets and Liabilities included in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), are an
independent registered 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 or incorporated by reference 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 1933 Act 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
20
each of the Fund Agreements have been duly executed and delivered by the
Fund and each constitutes the valid and legally binding agreement of the
Fund, enforceable against the Fund in accordance with its 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 or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement to either of
them), subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (and any amendment
or supplement to either of them), the Fund has not incurred any liability
or obligation, direct or contingent, except for such liability or
obligation that, either alone or in the aggregate, does not have or would
not reasonably be expected to have a Material Adverse Effect on the Fund or
entered into any transaction, not in the ordinary course of business, and
there has not been any change in the capital stock or any material, adverse
change or any development involving or which would reasonably be expected
to have a Material Adverse Effect on the Fund or a material adverse effect
on its capitalization, or the incurrence of any debt by, the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute to the public any offering material in connection with
the offering and sale of the Shares other than the Registration Statement,
the Prepricing Prospectus included in Pre-Effective Amendment No. 2 to the
registration statement, the Prospectus and the investor sales material (as
hereinafter defined) filed
21
with the NASD on [ ], 2005.
--
(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 the Board of Trustees' 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 Code; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles, to calculate net asset value and
fee accruals, to maintain accountability for assets and to maintain
compliance with the books and records requirements under the 1940 Act and
the 1940 Act Rules and Regulations; (iii) access to assets is permitted
only in accordance with the Board of Trustees' 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.
22
(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 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 and the Rules and
Regulations as a closed-end, diversified management investment company and
the 1940 Act Notification has been duly filed with the Commission and, at
the time of filing thereof and at the time of filing any amendment or
supplement thereto, the 1940 Act Notification conformed in all material
respects with all applicable provisions of the 1940 Act and the Rules and
Regulations; the Fund has received no order of suspension or revocation of
such registration under the 1940 Act and the 1940 Act Rules and Regulations
and, to the knowledge of the Fund, no such order has been issued or
proceedings therefor initiated or threatened by the Commission. The
provisions of the Declaration, and the investment policies and restrictions
described in each of the Registration Statement and the Prospectus, comply
in all material respects with the requirements of the 1940 Act and the 1940
Act Rules and Regulations.
(t) All advertising, sales literature or other promotional material
(including "prospecting letters" and "prospectus wrappers" (collectively,
"investor sales material") and "broker kits," "road show slides," "road
show scripts," "broker post-cards" and "broker reference cards"
(collectively, "broker sales material")
23
authorized in writing by or prepared by the Fund, the Adviser or the
Sub-Adviser for use in connection with the offering and sale of the Shares
(investor sales material and broker sales material is collectively referred
to as "sales material")) complied and comply in all 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 and no such
sales material, when read together with the Prospectus, 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 1933 Act, the 1940
Act, the Rules and Regulations, the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and the rules and regulations of the
Commission promulgated under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of any Shares, capital stock or any other security of the Fund
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Fund, the Adviser and the Sub-Adviser intend 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 Code.
(x) In the event that the Fund, the Adviser or the Sub-Adviser makes
available any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, the Fund,
24
the Adviser or the Sub-Adviser, as applicable, will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed effectively to prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof in a manner consistent with the Rules and
Regulations and the interpretations thereof of the SEC and its staff.
(y) The Fund has not received, and to the knowledge of the Fund, the
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus or the Prospectus.
(z) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no trustee
of the Fund is an "interested person" (as defined in the 0000 Xxx) of the
Fund or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter listed in Schedule I hereto.
(aa) The Shares have been approved for listing on the NYSE and the
Fund's registration statement on Form 8-A under the 1934 Act has become
effective.
7. Representations and Warranties of the Adviser. The Adviser represents
and warrants to each Underwriter as follows:
(a) The Adviser 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 each of the Registration Statement
and the Prospectus (or 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
25
where the failure so to register or to qualify would not reasonably be
expected to have a Material Adverse Effect on the Adviser or the Fund.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Investment Management
Agreement for the Fund as contemplated by the Registration Statement or the
Prospectus (or any amendment or supplement to either of them). There does
not exist any proceeding which would reasonably be expected to have a
material adverse effect on the registration of the Adviser with the
Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Adviser, threatened against the Adviser 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 would reasonably be expected to result in any Material
Adverse Effect on the Adviser or that would be reasonably expected to have
a material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement or the Investment Management Agreement.
(d) Neither the execution, delivery or performance by the Adviser of
this Agreement, the Investment Management Agreement, the Expense
Reimbursement Agreement, the Sub-Advisory Agreement or the Subscription
Agreement for Common Shares of the Fund dated March 11, 2005 (the
"Subscription Agreement," this Agreement, the Investment Management
Agreement, the Expense Reimbursement Agreement, the Sub-Advisory Agreement
and the Subscription Agreement being referred to herein as the "Adviser
Agreements"), nor the consummation by the Adviser of the transactions
contemplated hereby or thereby (i) requires the Adviser
26
to obtain any consent, approval, authorization or other order of, or
registration or filing which has not yet been made or obtained with, the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Adviser (except compliance with 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 bylaws, or other
organizational documents of the Adviser or (ii) conflicts or will conflict
with or constitutes or will constitute a material breach of or a default
under, any material agreement, indenture, lease or other instrument to
which the Adviser is a party or by which the Adviser or any of its
properties may be bound, or materially violates or will materially violate
any material statute, law, regulation or judgment, injunction, order or
decree applicable to the Adviser or any of its properties or will result in
the creation or imposition of any material lien, charge or encumbrance upon
any property or assets of the Adviser pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be bound
or to which any of the property or assets of the Adviser is subject, except
in any case under clause (i) or (ii) as would not reasonably be expected to
have a material adverse effect on the ability of the Adviser to perform its
obligations under any of the Adviser Agreements. The Adviser is not subject
to any order of any court or of any arbitrator, regulatory body,
administrative agency or other governmental body, agency or official.
(e) The Adviser has full power and authority to enter into each of the
Adviser Agreements, the execution and delivery of, and the performance by
the Adviser of its obligations under, each of the Adviser Agreements
27
have been duly and validly authorized by the Adviser and each of the
Adviser Agreements have been duly executed and delivered by the Adviser and
constitute the valid and legally binding agreements of the Adviser,
enforceable against the Adviser in accordance with their terms, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Adviser's obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, 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.
(f) The Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement and the Prospectus (or any amendment or supplement
to either of them) or under each of the Adviser Agreements.
(g) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) 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 the Prospectus, in light of the circumstances under which they were
made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them), except as otherwise stated therein, (i) there has been
28
no material adverse change in the condition (financial or other), business,
properties, net assets or results of operations or business prospects of
the Adviser, whether or not arising from the ordinary course of business
and (ii) there have been no transactions entered into by the Adviser which
are material to the Adviser other than those in the ordinary course of its
business as described in the Prospectus.
(i) The Adviser has such 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 Adviser has fulfilled and
performed all its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Adviser under any such permit.
(j) None of the Adviser Agreements violate any applicable provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and
the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the foregoing),
the Adviser has not taken and will not take, directly or indirectly, any
action designed to or which would reasonably be expected to cause or result
in or which will constitute stabilization or manipulation of the price of
the Shares or of any securities issued by the Fund to facilitate the sale
or resale of the Shares, in each case, in violation of federal securities
laws and the Adviser is not aware of any such action taken or to be taken
by any affiliates of the Adviser.
8. Representations and Warranties of the Sub-Adviser. The Sub-Adviser
represents and warrants to each Underwriter as follows:
29
(a) The Sub-Adviser is a corporation duly organized and validly
existing in good standing under the laws of the State of Connecticut, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in each of the Registration
Statement and the Prospectus (or any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify would
not have a Material Adverse Effect on the Sub-Adviser or the Fund.
(b) The Sub-Adviser is duly registered with the Commission 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 Sub-Advisory Agreement
for the Fund as contemplated by the Registration Statement or the
Prospectus (or any amendment or supplement to either of them). There does
not exist any proceeding which could have a material adverse effect on the
registration of the Sub-Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Sub-Adviser, threatened against the Sub-Adviser 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 would reasonably be expected to result in any Material
Adverse Effect on the Sub-Adviser or that would be reasonably expected to
have a material adverse effect on the ability of the Sub-Adviser to perform
its obligations under this Agreement or the Sub-Advisory Agreement.
(d) Neither the execution, delivery or performance by the Sub-Adviser
of this Agreement or the Sub-Advisory
30
Agreement (this Agreement and the Sub-Advisory Agreement being referred to
herein as the "Sub-Adviser Agreements"), nor the consummation by the
Sub-Adviser of the transactions contemplated hereby or thereby (i) requires
the Sub-Adviser to obtain any consent, approval, authorization or other
order of, or registration or filing which has not yet been made or obtained
with, the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Sub-Adviser (except compliance with 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 bylaws, or other
organizational documents of the Sub-Adviser or (ii) conflicts or will
conflict with or constitutes or will constitute a material breach of or a
default under, any material agreement, indenture, lease or other instrument
to which the Sub-Adviser is a party or by which the Sub-Adviser or any of
its properties may be bound, or materially violates or will materially
violate any material statute, law, regulation or judgment, injunction,
order or decree applicable to the Sub-Adviser or any of its properties or
will result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Sub-Adviser pursuant to the
terms of any agreement or instrument to which it is a party or by which it
may be bound or to which any of the property or assets of the Sub-Adviser
is subject, except in any case under clause (i) or (ii) as would not have a
material adverse effect on the ability of the Sub-Adviser to perform its
obligations under any of the Sub-Adviser Agreements. The Sub-Adviser is not
subject to any order of any court or of any arbitrator, regulatory body,
administrative agency or other governmental body, agency or official.
31
(e) The Sub-Adviser has full power and authority to enter into each of
the Sub-Adviser Agreements, the execution and delivery of, and the
performance by the Sub-Adviser of its obligations under, each of the
Sub-Adviser Agreements have been duly and validly authorized by the
Sub-Adviser and each of the Sub-Adviser Agreements have been duly executed
and delivered by the Sub-Adviser and constitute the valid and legally
binding agreements of the Sub-Adviser, enforceable against the Sub-Adviser
in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the
Sub-Adviser's obligations hereunder and thereunder may be limited by
bankruptcy, fraudulent conveyance, 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.
(f) The Sub-Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) or under each of the Sub-Adviser
Agreements.
(g) The description of the Sub-Adviser and its business, and the
statements attributable to the Sub-Adviser, in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them)
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 the Prospectus, in light of the circumstances under which
they were made) not misleading.
32
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them), except as otherwise stated therein, (i) there has been no
material adverse change in the condition (financial or other), business,
properties, net assets or results of operations or business prospects of
the Sub-Adviser, whether or not arising from the ordinary course of
business and (ii) there have been no transactions entered into by the
Sub-Adviser which are material to the Sub-Adviser other than those in the
ordinary course of its business as described in the Prospectus.
(i) The Sub-Adviser has such 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 Sub-Adviser has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the Sub-Adviser under any such permit.
(j) None of the Sub-Adviser Agreements violate any applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus (or in any amendment or supplement to any of the foregoing),
the Sub-Adviser has not taken and will not take, directly or indirectly,
any action designed to or which would reasonably be expected to cause or
result in or which will constitute stabilization or manipulation of the
price of the Shares or of any securities issued by the Fund to facilitate
the sale or resale of the Shares, in each case, in violation of federal
securities laws and the Sub-Adviser is not aware of any such action taken
or to be taken by any affiliates of the Sub-Adviser.
33
9. Indemnification and Contribution.
(a) The Fund, the Adviser and the Sub-Adviser, jointly and severally,
agree to indemnify and hold harmless each of you and each other Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against
any and all losses, claims, damages, liabilities and expenses, 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 (as defined in Section 6(t) of
this Agreement) (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 indemnification contained in this paragraph (a) with respect to
the Registration Statement, the Prospectus or any Prepricing Prospectus (or
any amendment to any of the foregoing) shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any
person if it is shown that a copy of the Prospectus (which term as used in
this proviso shall not include any statement of additional information), as
then
34
amended or supplemented, was not delivered or sent to such person within
the time required by the 1933 Act and the 1933 Act Rules and Regulations
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in the Registration Statement, the
Prospectus or any Prepricing Prospectus was corrected in the Prospectus, as
then amended or supplemented, provided that the Fund has delivered the
Prospectus, as then amended or supplemented, to the several Underwriters in
requisite quantity on a timely basis to permit proper delivery or sending.
The foregoing indemnity agreement shall be in addition to any liability
which the Fund, the Adviser or the Sub-Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund, the Adviser or the Sub-Adviser,
such Underwriter or such controlling person shall promptly notify the Fund,
the Adviser or the Sub-Adviser and the Fund, the Adviser or the Sub-Adviser
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, the Adviser or the
Sub-Adviser have agreed in writing to pay such fees and expenses, (ii) the
Fund, the Adviser or the Sub-Adviser 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, the Adviser
or the Sub-Adviser and such Underwriter or such controlling person shall
have been advised by its counsel that representation of such indemnified
party and the Fund, the Adviser or the Sub-Adviser by the same
35
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, the Adviser and the Sub-Adviser shall not have the
right to assume the defense of such action, suit or proceeding on behalf of
such Underwriter or such controlling person). It is understood, however,
that the Fund, the Adviser and the Sub-Adviser shall, in connection with
any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel 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 the
Representatives 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, the Adviser and the Sub-Adviser shall not be liable
for any settlement of any such action, suit or proceeding effected without
the written consent of the Fund, the Adviser or the Sub-Adviser, 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, the Adviser and
the Sub-Adviser agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph and any such controlling
person from and against any loss, liability, damage or expense by reason of
such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund, the Adviser and the Sub-Adviser, their trustees
or directors, any officers of the Fund who sign the
36
Registration Statement and any person who controls the Fund, the Adviser or
the Sub-Adviser within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, to the same extent as the foregoing indemnity from the
Fund, the Adviser and the Sub-Adviser to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus (or any
amendment or supplement thereto). If any action, suit or proceeding shall
be brought against the Fund, the Adviser or the Sub-Adviser, any of their
trustees or directors, any such officer or any such controlling person,
based on the Registration Statement, the Prospectus or any Prepricing
Prospectus (or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to each of the
Fund, the Adviser and the Sub-Adviser by paragraph (b) above (except that
if the Fund, the Adviser or the Sub-Adviser shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the
fees and expenses of such counsel shall be at such Underwriter's expense)
and the Fund, the Adviser and the Sub-Adviser, their trustees or 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 9 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
37
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Fund, the Adviser and the Sub-Adviser on the one
hand (treated jointly for this purpose as one person) and the Underwriters
on the other 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,
the Adviser and the Sub-Adviser on the one hand (treated jointly for this
purpose as one person) and of the Underwriters on the other 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, the Adviser and
the Sub-Adviser on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund bear to the total underwriting discounts and
commissions received by the Underwriters, in each case, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Fund,
the Adviser and the Sub-Adviser on the one hand (treated jointly for this
purpose as one person) and of the Underwriters on the other 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, the Adviser and the Sub-Adviser on the one hand (treated jointly for
this purpose as one person) or by the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Fund, the Adviser, the Sub-Adviser and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 9
38
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the fees and commissions
received by it in connection with the Shares underwritten by it and
distributed to the public. 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 9 are several in proportion to the respective number of Shares
set forth opposite their names in Schedule I (or such number of Shares
increased as set forth in Section 11 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 9
39
shall, subject to the requirements of Release No. 11330, 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 9 and the representations
and warranties of each of the Fund, the Adviser and the Sub-Adviser set
forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Fund, the
Adviser, the Sub-Adviser or their trustees, directors, officers or any
person controlling the Fund, the Adviser or the Sub-Adviser, (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 Adviser or the Sub-Adviser or their trustees, directors, officers
or any person controlling the Fund, the Adviser or the Sub-Adviser shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
(h) The Fund, the Adviser and the Sub-Adviser each acknowledge that
the statements with respect to (1) the public offering price of the Shares
as set forth on the cover page of the Prospectus and (2) under the caption
"Underwriting" in the Prospectus, (i) the names of the Underwriters and the
number of Shares listed opposite such names in the table following the
first paragraph, (ii) the amounts of selling concessions and reallowances
of selling concessions, (iii) the tenth paragraph relating to confirmation
of sales to discretionary accounts, (iv) the eleventh and twelfth
paragraphs relating to stabilization and (v) the last paragraph relating to
the addresses of the lead manager constitute the only information furnished
in writing to the Fund by the Underwriters expressly for use in such
document. The Underwriters severally confirm that these statements are
correct in all material respects and were so furnished by or on behalf of
the Underwriters severally for use in the Prospectus.
40
(i) The indemnification provisions of this Section 9 that are
applicable to the Fund are subject to any applicable limitations and
provisions of Section 17(i) of the 1940 Act.
10. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Shares hereunder are subject to the accuracy of and
compliance with the representations, warranties and agreements of and by each of
the Fund, the Adviser and the Sub-Adviser contained herein on and as of the date
on which the Registration Statement becomes or became effective, the date of the
Prospectus (and of any amendment or supplement thereto) and the Closing Date
and, with respect to any Additional Shares, any Option Closing Date; to the
accuracy and completeness of all statements made by the Fund, the Adviser, the
Sub-Adviser or any of their respective 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 and the 1933 Act Rules and Regulations shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act shall have been
issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Fund, the Adviser, the Sub-Adviser or any Underwriter,
threatened by the Commission and any request of the Commission for
41
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) 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,
properties, net assets, or results of operations of the Fund, the Adviser
or the Sub-Adviser not contemplated by the Prospectus, which in your
opinion, would materially adversely affect the market for the Shares, or
(ii) any event or development relating to or involving the Fund, the
Adviser or the Sub-Adviser or any officer, trustee, or director of the
Fund, the Adviser or the Sub-Adviser, which makes any statement made in the
Prospectus 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 in order to state a material fact required by
the 1933 Act, the 1940 Act or the Rules and Regulations or any other law to
be stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in your opinion, materially adversely affect
the market for the Shares.
(c) That you shall have received on the Closing Date an opinion of
Xxxx, Xxxx & Xxxxx LLC, special counsel for the Fund, dated the Closing
Date and addressed to you, as the Representatives of the several
Underwriters, in substantially the form attached hereto as Exhibit A. In
rendering its opinion, Xxxx, Xxxx & Xxxxx LLC may rely, as to matters of
Massachusetts law, upon the opinion of Xxxxxxx XxXxxxxxx LLP dated as of
the date thereof.
(d) That you shall have received on the Closing Date an opinion of the
Adviser's internal counsel, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, in
42
substantially the form attached hereto as Exhibit B.
(e) That you shall have received on the Closing Date an opinion of
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, special counsel to the
Sub-Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, in substantially the form
attached hereto as Exhibit C.
(f) That you shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the Closing Date and
addressed to you, as the Representatives of the several underwriters, with
respect to such matters as you may require and the Fund, the Adviser, the
Sub-Adviser and their respective counsel shall have furnished to such
counsel such documents as they may request for the purpose of enabling them
to pass upon such matters.
(g) That you shall have received letters addressed to you, as the
Representatives of the several Underwriters and dated each of the date
hereof and the Closing Date from Ernst & Young LLP, independent registered
public accounting firm, substantially in the forms heretofore approved by
you.
(h) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement to any of the foregoing) 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 Adviser or the Sub-Adviser, with respect to the
transactions contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, may be pending before or, to the knowledge of
the Fund, the Adviser, the Sub-Adviser 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
43
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 increase in debt of the
Fund from that set forth in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) and the Fund shall not
have sustained any material liabilities or obligations, direct or
contingent, other than those reflected in or contemplated by the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them), (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, the Adviser or the Sub-Adviser, (iv) none of the
Fund, the Adviser or the Sub-Adviser shall have sustained any material loss
or interference with their businesses from any court or from legislative or
other governmental action, order or decree or from any other occurrence not
described in the Registration Statement or the Prospectus (or any amendment
or supplement to either of them), and (v) all of the representations and
warranties of each of the Fund, the Adviser or the Sub-Adviser 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.
(i) 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), general
affairs, business, prospects, properties, net assets or results of
operations of the Fund, the Adviser or the Sub-Adviser not contemplated by
the Prospectus (and any amendment or supplement thereto), which in your
opinion, as the 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 Adviser, the Sub-Adviser
or any
44
officer, trustee, director, of the Fund, the Adviser or the Sub-Adviser,
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, the Advisers Act, the
Advisers Act 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 the Representatives of the several Underwriters, materially,
adversely affect the market for the Shares.
(j) That none of the Fund, the Adviser or the Sub-Adviser 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.
(k) That you shall have received on the Closing Date a certificate,
dated such date, of the president, any managing director or any vice
president and of the controller, treasurer or assistant treasurer of each
of the Fund, the Adviser and the Sub-Adviser 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), the representations and warranties
of the Adviser (with respect to the certificates from such officers of the
Adviser) and the representations and warranties of the Sub-Adviser (with
respect to the
45
certificates from such officers of the Sub-Adviser) 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), the Adviser (with respect to the certificates from
such officers of the Adviser) or the Sub-Adviser (with respect to the
certificates from such officers of the Sub-Adviser), (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 Adviser (with
respect to the certificates from such officers of the Adviser) or the
Sub-Adviser (with respect to the certificates from such officers of the
Sub-Adviser) 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),
the Adviser (with respect to certificates from such officers of the
Adviser) and the Sub-Adviser (with respect to certificates from such
officers of the Sub-Adviser) has performed and complied with all agreements
that this Agreement require it to perform by such Closing Date, (vi) none
of the Fund (with respect to the certificate from such officers of the
Fund) or the Adviser (with respect to the certificate from such officers of
the Adviser) or the Sub-Adviser (with respect to the certificate from such
officers of the Sub-Adviser) has sustained any material loss or
interference with its
46
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 or 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 increase in the debt of the Fund from that set forth in the
Prospectus (or 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 (or any amendment or
supplement thereto).
(k) That the Fund, the Adviser and the Sub-Adviser shall have
furnished to you such further letters, certificates, documents and opinions
of counsel as you shall reasonably request (including certificates of
officers of the Fund, the Adviser and the Sub-Adviser).
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, the Adviser
or the Sub-Adviser and delivered to you, as the Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a representation and
warranty by the Fund, the Adviser or the Sub-Adviser 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, the Adviser and the Sub-Adviser
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 10 except that, if any Option Closing
Date is other than the Closing Date, the certificates, opinions and letters
47
referred to in Sections 10 (c), (d), (e), (f), (g) and (k) and this paragraph
shall be dated the Option Closing Date in question and the opinions and/or
letters called for by Sections 10 (c), (d), (e), (f) and (g) 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 12 hereof if they existed on or prior to the
Closing Date.
11. 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 the Registration
Statement or such post-effective amendment has become effective. Until such time
as this Agreement shall have become effective, it may be terminated by the Fund
by notifying you, or by you by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they have agreed to purchase hereunder and the aggregate
number of 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 Shares, each non-defaulting Underwriter shall be obligated, severally, in
the proportion which the aggregate number of Shares set forth opposite its name
in Schedule I hereby bears to the aggregate number of Shares set forth opposite
the names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with Section 7 of the X.X. Xxxxxxx Master Agreement
Among Underwriters, to purchase 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 Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares and arrangements satisfactory to you and the Fund for
the purchase of such
48
Shares by one or more non-defaulting Underwriters or other party or parties
approved by you and the Fund are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Fund. In any such case which does not result
in termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect to any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Fund, purchases Shares which a defaulting
Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 11 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. 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, the Adviser or the Sub-Adviser by notice to the Fund,
the Adviser or the Sub-Adviser 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 securities generally on
the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended
or limited or minimum prices shall have been established (ii) additional
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 shall have been declared by Federal or any state's
authorities or (iii) any outbreak or material escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial,
economic, legal or regulatory conditions, occurs, the effect of which
49
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, the Adviser or the Sub-Adviser by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. 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 or registration fees prescribed by
the 1933 Act, the 1934 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 (if any) 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, (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
50
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
paid by counsel for the Underwriters in connection with any filings required to
be made with the NASD and incurred with respect to the review by the NASD of the
offering of the Shares and of the sales materials, (i) the transportation,
lodging, graphics and other expenses related to the Fund's preparation for and
participation in the roadshow, (j) the listing of the Shares on the NYSE and (k)
an amount equal to $20,000 plus $0.0025 per Share for each Share in excess of
two million sold pursuant to this Agreement, payable on the Closing Date to the
Representatives 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. Nuveen Investments, LLC has agreed to pay organizational expenses and
offering costs of the Fund (other than sales load and the fund structuring fee)
that exceed $0.03 per Common Share.
Notwithstanding the foregoing, in the event that the sale of the Shares is
not consummated pursuant to Section 2 hereof, the Adviser or the Sub-Adviser
will pay the costs and expenses of the Fund set forth above in this Section
13(a) through (i), and reimbursements of Underwriter expenses in connection with
the offering shall be made in accordance with Section 5(l) hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 11 and 12
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 Adviser, c/o Nuveen
Advisory Corp., 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
X. Berkshire, (b) if to the Sub-Adviser, 0 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxx X. Xxxx and (c) if to you, as Representatives
of the Underwriters, at the office of X.X. Xxxxxxx & Sons, Inc., Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
51
Attention: Xxxxxxx X. Xxxx, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx,
Esq.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Adviser, the Sub-Adviser, their trustees, directors,
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 Amended and Restated 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 a 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 of the
Fund or the shareholders of the Fund individually, but are binding only upon the
assets and property of the Fund.
14. 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.
52
Please confirm that the foregoing correctly sets forth the agreement among
the Fund, the Adviser, the Sub-Adviser and the several Underwriters.
Very truly yours,
NUVEEN TAX-ADVANTAGED
FLOATING RATE FUND
By:
----------------------------
Title:
NUVEEN ASSET MANAGEMENT, INC.
By:
----------------------------
Title:
SPECTRUM ASSET MANAGEMENT, INC.
By:
----------------------------
Title:
53
Confirmed as of the date
first above written on
behalf of themselves and
the other several Under-
writers named in Schedule
I hereto.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
X.X. XXXXXXX & SONS, INC.
By:
---------------------------------
Title:
54
SCHEDULE I
Underwriter Number of Shares
----------- ----------------
X.X. Xxxxxxx & Sons, Inc. [ ]
--
Wachovia Capital Markets, LLC
Nuveen Investments, LLC
Deutsche Bank Securities Inc.
Advest, Inc.
H&R Block Financial Advisors, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated.
KeyBanc Capital Markets,
a division of McDonald Investments, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets Corporation.
Xxxxxx, Xxxxxxxx & Company, Incorporated.
SunTrust Capital Markets, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
Total [ ]
--
55
EXHIBIT A
Form of Xxxx Xxxx & Xxxxx LLC Opinion
i. The Registration Statement and all post-effective amendments, if any, are
effective under the Act and, to the best of our knowledge, no stop order with
respect thereto has been issued and no proceeding for that purpose has been
instituted or is threatened by the Commission. Any filing of the Prospectus or
any supplements thereto required under Rule 497 under the Act prior to the date
hereof have been made in accordance with such rule.
ii. The Fund has been duly formed and is validly existing as a business trust in
good standing under the laws of the Commonwealth of Massachusetts, with full
business trust power to conduct all the activities conducted by it, to own or
lease all assets owned (or to be owned) or leased (or to be leased) by it and to
conduct its business, all as described in the Registration Statement and
Prospectus, and the Fund is duly licensed and qualified to do business and in
good standing in each jurisdiction in which its ownership or leasing of property
or its conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing, either alone or in the
aggregate, would not have a material adverse effect on the Fund, and, to the
best of our knowledge, the Fund owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders, approvals and
other authorizations, whether foreign or domestic, necessary to carry on its
business as contemplated in the Prospectus, except where the failure to obtain
such licenses, permits, consents, orders, approvals and other authorizations,
either alone or in the aggregate, would not have a material adverse effect on
the Fund.
iii. The number of authorized, issued and outstanding shares of Common Shares of
the Fund is as set forth in the Registration Statement and the Prospectus under
the caption Description of Shares--Common Shares" and in the statement of
additional information under the caption "Financial
56
Statements--Statements of Assets and Liabilities as of [ ], 2005." The Common
--
Shares of the Fund conform in all material respects to the description of them
in the Prospectus under the caption "Description of Shares --Common Shares." All
the outstanding Common Shares have been duly authorized and are validly issued,
fully paid and (except as described in the Prospectus under "Certain Provisions
in the Declaration of Trust") nonassessable. The Shares to be issued and
delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement against payment therefor as provided by the Underwriting
Agreement have been duly authorized and when issued and delivered to the
Underwriters as so provided will have been validly issued and will be fully paid
and (except as described in the Prospectus under "Certain Provisions in the
Declaration of Trust") nonassessable. No person is entitled to any preemptive or
other similar rights with respect to the Shares under the Declaration of Trust
or by-laws of the Fund or under Massachusetts law or, to counsel's knowledge,
otherwise.
iv. The Fund is duly registered with the Commission under the 1940 Act as a
diversified, closed-end management investment company and all action under the
1933 Act and the 1940 Act, as the case may be, necessary to make the public
offering and consummate the sale of the Shares as provided in the Underwriting
Agreement has been taken by the Fund.
v. The Fund has full business trust power to enter into each of the Underwriting
Agreement, the Investment Management Agreement, the Custody Agreement, the
Transfer Agency Agreement and the Expense Reimbursement Agreement, (the
Investment Management Agreement, the Custody Agreement, the Transfer Agency
Agreement and the Expense Reimbursement Agreement are referred to collectively
as the "Fund Agreements") and to perform all of the terms and provisions thereof
to be carried out by it and (A) each of the Underwriting Agreement and the Fund
Agreements has been duly and validly authorized, executed and delivered by the
Fund, (B) each of the Underwriting Agreement and each Fund Agreement complies in
all material respects with all applicable provisions of the 1940 Act and the
Advisers Act,
57
as the case may be, and (C) assuming due authorization, execution and delivery
by the other parties thereto and that performance of the Fund Agreements by such
other parties will not violate law, agreements to which such other parties or
their properties are subject or orders applicable to such other parties, each
Fund Agreement constitutes the legal, valid and binding obligation of the Fund
enforceable against the Fund in accordance with its terms, (1) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (2)
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
vi. None of (A) the execution and delivery by the Fund of the Underwriting
Agreement or the Fund Agreements, (B) the issue and sale by the Fund of the
Shares as contemplated by the Underwriting Agreement and (C) the performance by
the Fund of its obligations under the Underwriting Agreement and the Fund
Agreements or consummation by the Fund of the other transactions contemplated by
the Underwriting Agreement and the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Fund or any material agreement or instrument to
which the Fund is a party or by which the Fund is bound that is filed as an
exhibit to the Registration Statement, or any law, rule or regulation which in
our experience is normally applicable to transactions of the type contemplated
by the Underwriting Agreement, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator, whether
foreign or domestic, specifically naming the Fund and known to us, except that
we express no opinion as to the securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement and except that, in the published opinion
of the Commission, the indemnification provisions in the Underwriting 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
58
the 1933 Act and therefore unenforceable.
vii. No material consent, approval, authorization or order of any court (to
counsel's knowledge) or governmental agency or body or securities exchange or
association, whether foreign or domestic, is required by the Fund for the
consummation by the Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be performed by or on
behalf of it in each case as contemplated in the Underwriting Agreement and the
Fund Agreements, except such as (A) have been obtained under the federal
securities laws and (B) may be required by the NYSE or under state securities or
"blue sky" laws in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to the Underwriting Agreement.
viii. The Shares have been approved for listing on the NYSE, subject to official
notice of issuance, and the Fund's Registration Statement on Form 8-A under the
1934 Act is effective.
ix. Other than as described in or contemplated by the Prospectus, to the best of
our knowledge, there are no legal or governmental proceedings pending or
threatened against the Fund.
x. The Fund does not require any tax or other rulings to enable it to qualify as
a regulated investment company under Subchapter M of the Code.
xi. The section in the Prospectus entitled "Taxes" and the section in the
Statement of Additional Information entitled "Taxes", to the extent they
describe or summarize tax laws, doctrines or practices in the United States,
legal matters, agreements, documents or proceedings discussed therein, present
an accurate description or fair summary thereof as of the date of this opinion.
xii. The Registration Statement, at the time it became effective, and the
Prospectus, as of the date thereof (in each case except for the financial
statements and schedules
59
including the notes and schedules thereto, and other financial, statistical or
accounting data included therein or omitted therefrom, as to which we express no
view), complied as to form in all material respects with the requirements of the
Act and the 1940 Act.
While we have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus, except to the limited extent set forth in paragraph (xi) above,
in the course of our review of the contents of the Registration Statement and
the Prospectus with certain officers and employees of the Fund and the Fund's
independent registered public accounting firm, no facts have come to our
attention that cause us to believe that the Registration Statement, at the time
it became effective (but after giving effect to any changes incorporated
pursuant to Rule 430A under the Act), 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 not misleading (except that we
express no view with respect to the financial statements, including notes and
schedules thereto, or any other financial, statistical or accounting data
included therein), or that the Prospectus, as of the date it was filed with the
Commission pursuant to Rule 497 under the Act and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except that we express no view with respect to the financial statements,
including notes and schedules thereto, or any other financial, statistical or
accounting data included therein).
60
EXHIBIT B
Form of Nuveen Asset Management, Inc.'s Internal Counsel
Opinion
i. The Adviser has been duly formed and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with full power and
authority to own or lease all of the assets owned or leased by it and to conduct
its business as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under the Underwriting Agreement and the
Investment Management Agreement.
ii. The Adviser is duly registered as an investment adviser under the Advisers
Act and is not prohibited by the Advisers Act or the 1940 Act from acting as
investment adviser for the Fund as contemplated by the Investment Management
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full power and authority to enter into each of the
Underwriting Agreement, the Investment Management Agreement and the Expense
Reimbursement Agreement (the Investment Management Agreement and the Expense
Reimbursement Agreement are referred to collectively as the "Adviser
Agreements") and to carry out all the terms and provisions thereof to be carried
out by it, and each such agreement has been duly and validly authorized,
executed and delivered by the Adviser; each of the Underwriting Agreement and
each Adviser Agreement complies in all material respects with all provisions of
the 1940 Act and the Advisers Act; and assuming due authorization, execution and
delivery by the other parties thereto and that performance of each Adviser
Agreement by such other parties will not violate law, agreements to which such
other parties or their properties are subject or orders applicable to such other
parties, each Adviser Agreement constitutes a legal, valid and binding
obligation of the Adviser, enforceable against the Adviser in accordance with
its terms, (1) subject, as to enforcement, to
61
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general equitable principles (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (2) except as rights to
indemnity thereunder may be limited by federal or state securities laws.
iv. Neither (A) the execution and delivery by the Adviser of the Underwriting
Agreement or any Adviser Agreement nor (B) the consummation by the Adviser of
the transactions contemplated by, or the performance of its obligations under
the Underwriting Agreement or any Adviser Agreement conflicts or will conflict
with, or results or will result in a breach of, the charter or by-laws of the
Adviser or any agreement or instrument to which the Adviser is a party or by
which the Adviser is bound, or any federal law, rule or regulation, any
provision of the Delaware General Corporation Law or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, specifically naming the Adviser and known to
counsel, except in each case for such conflicts or breaches which do not, either
alone or in the aggregate, have a material adverse effect on the Adviser's
ability to perform its obligations under the Underwriting Agreement and the
Adviser Agreements, and except that, in the published opinion of the Commission,
the indemnification provisions in the Underwriting Agreement and the Adviser
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.
v. No consent, approval, authorization or order of any court (to my knowledge),
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Adviser of its obligations under, the
Underwriting Agreement and any Adviser Agreement, except (i) such as have been
obtained under the federal securities laws and (ii) may be required by the New
York Stock Exchange or under state
62
securities or "blue sky" laws, in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
vii. To the best of my knowledge, there is no legal or governmental proceeding
pending or threatened against the Adviser that is either (i) required to be
described in the Registration Statement or Prospectus that is not already
described or (ii) which would, under Section 9 of the Investment Company Act,
make the Adviser ineligible to act as the Fund's investment adviser.
I have not checked the accuracy and completeness of or otherwise
verified, and am not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Adviser at which the contents of the Registration Statement and Prospectus were
discussed. No facts have come to my attention that cause me to believe that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Registration Statement, at the time it became effective (but
after giving effect to any changes incorporated pursuant to Rule 430A under the
Act), 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 not misleading (except that I express no view with respect to the
financial statements, including notes and schedules thereto, or any other
financial, statistical or accounting data included therein), or that the
description of the Adviser and its business, and the statements attributable to
the Adviser, in the Prospectus, as of the date it was filed with the Commission
pursuant to Rule 497 under the Act and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except that I
express no view with respect to the financial statements, including notes and
schedules
63
thereto, or any other financial, statistical or accounting data included
therein).
64
EXHIBIT C
Form of Spectrum Asset Management, Inc.'s Special Counsel
Opinion
i. The Sub-Adviser has been duly formed and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with full corporate power
and authority to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus
and to enter into and perform its obligations under the Underwriting Agreement
and the Sub-Advisory Agreement.
ii. The Sub-Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
iii. The Adviser has full corporate power and authority to enter into each of
the Underwriting Agreement, the Sub-Advisory Agreement and to carry out all the
terms and provisions thereof to be carried out by it, and each such agreement
has been duly and validly authorized, executed and delivered by the Sub-Adviser;
each of the Underwriting Agreement and the Sub-Advisory Agreement complies in
all material respects with all provisions of the 1940 Act and the Advisers Act;
and assuming due authorization, execution and delivery by the other parties
thereto and that performance of the Sub-Advisory Agreement by such other parties
will not violate law, agreements to which such other parties or their properties
are subject or orders applicable to such other parties, the Sub-Advisory
Agreement constitutes a legal, valid and binding obligation of the Sub-Adviser,
enforceable against the Sub-Adviser in accordance with its terms, (1) subject,
as to enforcement, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general equitable principles
(regardless of
65
whether enforcement is sought in a proceeding in equity or at law) and (2)
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
iv. Neither (A) the execution and delivery by the Sub-Adviser of the
Underwriting Agreement or the Sub-Advisory Agreement nor (B) the consummation by
the Sub-Adviser of the transactions contemplated by, or the performance of its
obligations under the Underwriting Agreement or the Sub-Advisory Agreement
conflicts or will conflict with, or results or will result in a breach of, the
Amended and Restated Certificate of Incorporation or by-laws of the Sub-Adviser
or any agreement or instrument to which the Sub-Adviser is a party or by which
the Sub-Adviser is bound that is known to such counsel, or any federal law, rule
or regulation, any provision of the Connecticut Business Corporations Act or
order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, specifically naming the
Sub-Adviser and known to counsel, except in each case for such conflicts or
breaches which do not, either alone or in the aggregate, have a material adverse
effect on the Sub-Adviser's ability to perform its obligations under the
Underwriting Agreement and the Sub-Advisory Agreement, and except that, in the
published opinion of the Commission, the indemnification provisions in the
Underwriting Agreement and the Sub-Advisory Agreement, 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.
v. No material consent, approval, authorization or order of any court (to our
knowledge), governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the Sub-Adviser of its
obligations under, the Underwriting Agreement and the Sub-Advisory Agreement,
except (i) such as have been obtained under the federal securities laws and (ii)
may be required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the
66
purchase and distribution of the Shares by the Underwriters pursuant to the
Underwriting Agreement.
vii. To the best of our knowledge, there is no legal or governmental proceeding
pending or threatened against the Sub-Adviser that is either (i) required to be
described in the Registration Statement or Prospectus that is not already
described or (ii) that would, under Section 9 of the Investment Company Act,
make the Sub-Adviser ineligible to act as the Fund's investment sub-adviser.
We have not checked the accuracy and completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the accuracy
or completeness of, the statements contained in the Registration Statement or
the Prospectus. We have participated in conferences with representatives of the
Sub-Adviser at which the contents of the Registration Statement and Prospectus
were discussed. No facts have come to our attention that cause us to believe
that the description of the Sub-Adviser and its business, and the statements
attributable to the Sub-Adviser, in the Registration Statement, at the time it
became effective (but after giving effect to any changes incorporated pursuant
to Rule 430A under the Act), 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 not misleading (except that we express no view
with respect to the financial statements, including notes and schedules thereto,
or any other financial, statistical or accounting data included therein), or
that the description of the Sub-Adviser and its business, and the statements
attributable to the Sub-Adviser, in the Prospectus, as of the date it was filed
with the Commission pursuant to Rule 497 under the Act and as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that we express no view with respect to the financial
statements, including notes and schedules thereto, or any other financial,
statistical or accounting data included therein).
67
