EXHIBIT 99.2(h)(2)
Conseco Strategic Income Fund
_____________ Shares*
of Beneficial Interest
UNDERWRITING AGREEMENT
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July __, 1998
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX, XXXXXX & CO.
XXXX XXXXX XXXX XXXXXX INCORPORATED
XxXXXXXX & COMPANY SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Conseco Strategic Income Fund, a Massachusetts business trust (the
"Company"), Conseco Capital Management, Inc., a Delaware corporation and the
Company's investment manager and administrator (the "Manager") and Conseco,
Inc., an Indiana corporation and the parent of the Manager ("Conseco"), hereby
confirm their agreement with the several underwriters named in Schedule 1 hereto
(the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
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Company proposes to issue and sell to the several Underwriters an aggregate of
_______ (the "Firm Securities") of shares of beneficial interest in the Company,
par value, $.001 per share (the "Shares"). The Company also proposes to issue
and sell to the several Underwriters not more than _______ additional Shares if
requested by the Representatives as provided in Section 3 of this Agreement.
Any and all Shares to be purchased by the Underwriters pursuant to such option
are referred to
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* Plus an option to purchase from Conseco Strategic Income Fund up to _______
additional shares to cover over-allotments.
herein as the "Option Securities", and the Firm Securities and any Option
Securities are collectively referred to herein as the "Securities".
2. Representations and Warranties of the Company and the Manager. (a) The
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Company and the Manager jointly and severally represent and warrant to, and
agree with, each of the several Underwriters that:
(i) A registration statement on Form N-2 (File Nos. 333-55809 and
811-08795) with respect to the Securities, including a prospectus subject
to completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), and one or more amendments to such registration
statement may have been so filed. A notification of registration on Form N-
8A (the "Notification of Registration") has also been filed with the
Commission pursuant to Section 8(a) of the Investment Company Act of 1940,
as amended (the "Investment Company Act"). After the execution of this
Agreement, the Company will file with the Commission either (A) if such
registration statement, as it may have been amended, has been declared by
the Commission to be effective under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no
such amendment shall have been filed, in such registration statement), with
such changes or insertions as are required by Rule 430A under the Act or
permitted by Rule 497(h) under the Act and as have been provided to and
approved by the Representatives prior to the execution of this Agreement,
or (B) if such registration statement, as it may have been amended, has not
been declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy of
which amendment has been furnished to and approved by the Representatives
prior to the execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration statement, as amended
at the time when it was or is declared effective, including all financial
schedules and exhibits thereto and including any information omitted
therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus"
means each prospectus subject to completion filed with such registration
statement or any amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any amendment
thereto at the time it was or is declared effective); and the term
"Prospectus" means the prospectus first filed with the Commission pursuant
to Rule 497(b) or (h), as the case may be, under the Act or, if applicable,
as subsequently filed pursuant to Rule 497(d) under the Act.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (A) contained all statements
required to be stated therein in accordance with, and complied in all
material respects with the requirements of, the Act, the Investment Company
Act and the respective rules and regulations of the Commission thereunder
and (B) did not include any untrue statement of a material fact or omit to
state any material fact necessary in
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order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. When the Registration Statement
or any amendment thereto was or is declared effective, it (A) contained or
will contain all statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the
requirements of, the Act, the Investment Company Act and the respective
rules and regulations of the Commission thereunder and (B) did not or will
not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading. When
the Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule 497(b) or (h) under the Act, as the case may
be, and, if applicable, when subsequently filed with the Commission
pursuant to Rule 497(d) under the Act (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment
or supplement to the Prospectus was or is declared effective), and on the
Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (A)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with
the requirements of, the Act, the Investment Company Act and the respective
rules and regulations of the Commission thereunder and (B) did not or will
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or
any amendment thereto or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
(iii) When the Notification of Registration was filed with the
Commission, it (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements
of, the Investment Company Act and the rules and regulations of the
Commission thereunder and (ii) did not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading.
(iv) The Company has been duly organized and is validly existing
as a business trust in good standing under the laws of the Commonwealth of
Massachusetts and is duly qualified to transact business and is in good
standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company; and the Company holds
all licenses, certificates and permits from all governmental authorities
necessary for the conduct of its business as described in the Prospectus
(or, if the Prospectus is not in existence, the most recent
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Preliminary Prospectus) (other than, if the Registration Statement is not
effective under the Act, the order of the Commission declaring the
Registration Statement effective under the Act and similar orders as may be
required under state securities or blue sky laws). The Company has no
subsidiaries.
(v) The Company has full power (corporate and other) (i) to own or
lease its properties and conduct its business as described in the
Registration Statement and the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus; (ii) to enter into this
Agreement, the Investment Management and Administration Agreement, dated as
of July 27, 1998 (the "Management and Administration Agreement"), between
the Company and the Manager, the Custodian Contract dated as of July 27,
1998 (the "Custody Agreement"), between the Company and PNC Bank, National
Association ("PNC") (in such capacity, the "Custodian"), the Transfer and
Dividend Disbursing Agreement, dated as of July 27, 1998 (the "Transfer and
Dividend Disbursing Agreement"), between the Company and PNC, and the
Shareholder Servicing Agreement, dated as of July 27, 1998, (the
"Shareholder Servicing Agreement"), between the Company and Conseco
Services LLC; (iii) to adopt the automatic dividend reinvestment plan (the
"Automatic Dividend Reinvestment Plan") described in the Prospectus, or, if
the prospectus is not in existence, the most recent Preliminary Prospectus;
and (iv) to carry out all the terms and provisions hereof and of any of the
foregoing agreements and plans to be carried out by it.
(vi) The Company is duly registered with the Commission pursuant to
Section 8 of the Investment Company Act as a closed-end non-diversified
management investment company; and the Company's declaration of trust and
by-laws comply in all material respects with the Investment Company Act and
the rules and regulations of the Commission thereunder.
(vii) The Company has authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus. All of the issued
Shares have been duly authorized and validly issued and are fully paid and
nonassessable. The Firm Securities and the Option Securities have been duly
authorized and at the Firm Closing Date or the related Option Closing Date
(as the case may be), after payment therefor in accordance herewith, will
be validly issued, fully paid and nonassessable. The Securities have been
duly authorized for listing, subject to official notice of issuance, on the
New York Stock Exchange, and the Company's Registration Statement on Form
8-A under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), has become effective. No holders of outstanding shares of beneficial
interest of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, and no holder of securities
of the Company has any right which has not been fully exercised or waived
to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by
this agreement.
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(viii) The Shares conform to the description thereof contained in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
(ix) Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the Company convertible into
or exchangeable for any capital stock of the Company, (B) warrants, rights
or options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations, or
(C) obligations of the Company to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(x) The Statement of Assets, Liabilities and Capital of the
Company included in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly presents the financial position of the Company as of the dates
therein specified. Such Statement of Assets, Liabilities and Capital has
been prepared in accordance with generally accepted accounting principles.
(xi) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and delivered their report with respect
to the Statement of Assets, Liabilities and Capital of the Company included
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), are independent
public accountants as required by the Act, the Investment Company Act and
the respective rules and regulations thereunder.
(xii) The execution and delivery of this Agreement, the Management
and Administration Agreement, the Custody Agreement, the Transfer and
Dividend Disbursing Agreement, and the Shareholder Servicing Agreement have
been duly authorized by the Company; this Agreement, the Management and
Administration Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement have been
duly executed and delivered by the Company; and assuming due authorization,
execution and delivery by the other parties thereto, the Management and
Administration Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement are the
legal, valid, binding and enforceable instruments of the Company and all
such agreements and the Automatic Dividend Reinvestment Plan comply in all
material respects with the requirements of the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and the Investment Company Act and
the respective rules and regulations of the Commission thereunder; and the
Automatic Dividend Reinvestment Plan has been duly adopted by the Company.
(xiii) No legal or governmental proceedings are pending to which
the Company is a party or to which the property of the Company is subject
that are
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required to be described in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), and are not described therein and, to the knowledge of the
Company and the Manager, no such proceedings have been threatened against
the Company or with respect to any of its properties; and no contract or
other document is required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described therein (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) or filed as required by the Act,
the Investment Company Act or the respective rules and regulations of the
Commission thereunder.
(xiv) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement, the Management and
Administration Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, stock exchange or securities
association except such as have been obtained, such as may be required
under state securities or blue sky laws or the rules of the National
Association of Securities Dealers, Inc. (the "NASD Rules") and, if the
registration statement filed with respect to the Securities (as amended) is
not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the
Act or the Investment Company Act, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company is a party or by which the
Company or any of its properties are bound, or the declaration of trust or
by-laws of the Company or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any
arbitrator applicable to the Company.
(xv) Subsequent to the date of the audited Statement of Assets,
Liabilities and Capital included in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), the Company
has not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions not in the ordinary
course of business, and there has not been any material adverse change, or
any development involving a prospective material adverse change (including
without limitation a change in management or control of the Company), in
the condition (financial or otherwise), business prospects, financial
position or net worth of the Company, except in each case as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xvi) The Company has not distributed and, prior to the later of
(i) the expiration of the option period described in Section 3(b) hereof
and (ii) the completion of the distribution of the Securities, will not
distribute any offering
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material in connection with the offering and sale of the Securities other
than the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
other materials, if any, permitted by the Act.
(xvii) Neither the Company nor the Manager has directly or
indirectly, (A) taken any action designed to cause or to result in, or that
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities or (B) since the filing
of the Registration Statement (X) sold, bid for, purchased, or paid anyone
any compensation for soliciting purchases of, the Securities or (Y) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xviii) Each certificate signed by any officer of the Company in
his or her capacity as such and delivered to the Representatives or counsel
for the Underwriters shall be deemed to be a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
(xix) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorization and with the investment policies and restrictions of the
Company and the applicable requirements of the Investment Company Act, the
rules and regulations thereunder and the Internal Revenue Code of 1986, as
amended; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles, to calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and records
requirements under the Investment Company Act and the rules and regulations
thereunder; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
account for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xx) The conduct by the Company of its business (as described in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary 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.
(b) The Manager represents and warrants to, and agrees with each of the
Underwriters that:
(i) The Manager has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
and is duly qualified to transact business as a foreign corporation and is
in good standing under the laws of all other jurisdictions where the
ownership or leasing of its
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properties or the conduct of its business requires such qualification,
except where the failure to be so qualified does not amount to a material
liability or disability to the Manager.
(ii) The Manager has full power (corporate and other) to own or
lease its properties and conduct its business as described in the
Registration Statement and the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus; and the Manager has full
power (corporate and other) to enter into this Agreement and the Management
and Administration Agreement and to carry out all the terms and provisions
hereof and thereof to be carried out by it.
(iii) The Manager is duly registered with the Commission as an
investment adviser under the Advisers Act; and the Manager is not
prohibited by any provision of the Advisers Act or the Investment Company
Act, or the respective rules and regulations of the Commission thereunder,
from performing its obligations under the Management and Administration
Agreement.
(iv) The execution and delivery of this Agreement and the
Management and Administration Agreement have been duly authorized by the
Manager; this Agreement and the Management and Administration Agreement
have been duly executed and delivered by the Manager; and, assuming due
authorization, execution and delivery by the Company, the Management and
Administration Agreement is the legal, valid, binding and enforceable
instrument of the Manager and complies in all material respects with the
Advisers Act and the Investment Company Act and the respective rules and
regulations of the Commission thereunder.
(v) The compliance by the Manager with the provisions of this
Agreement and the Management and Administration Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, stock exchange or securities
association except such as have been obtained, such as may be required
under state securities or blue sky laws or the NASD Rules and, if the
registration statement filed with respect to the Securities (as amended) is
not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the
Act or the Investment Company Act, (B) result in a material breach or
violation of any of the terms and provisions of, or constitute a material
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Manager is a party or by which the
Manager or any of its properties are bound, or (C) conflict with the
charter documents or by-laws of the Manager or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator, stock exchange or securities association
applicable to the Manager.
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(vi) The description of the Manager and its business contained in
the Prospectus (or, if the Prospectus is not yet in existence, the most
recent Preliminary Prospectus) complies in all material respects with the
requirements of the Act, the Investment Company Act and the respective
rules and regulations of the Commission thereunder and does not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(vii) Subsequent to the date of the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there has not been any material adverse change, or any development
involving a prospective material adverse change (including without
limitation a change in management or control of the Manager), in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Manager or in the ability of the Manager to
fulfill its respective obligations under this Agreement or the Management
and Administration Agreement.
(viii) No legal or governmental proceedings are pending to which the
Manager is a party or to which the property of the Manager is subject that
are required to be described in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and are not described therein and, to the
knowledge of the Manager, no such proceedings have been threatened against
the Manager or with respect to any of its properties.
(ix) Neither the Company nor the Manager has, directly or
indirectly, (A) taken any action designed to cause or to result in, or that
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities or (B) since the filing
of the Registration Statement (X) sold, bid for, purchased, or paid anyone
any compensation for soliciting purchases of, the Securities or (Y) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(x) The Manager 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.
(xi) Conseco has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Indiana and
is duly qualified to transact business as a foreign corporation and is in
good standing under the laws of all other jurisdictions where the ownership
or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Adviser.
(xii) The description of Conseco in the Prospectus (or, if the
Prospectus is not yet in existence, the most recent Preliminary Prospectus)
does not contain
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any untrue statement of material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xiii) This Agreement has been duly authorized, executed and
delivered by Conseco; and neither the execution and delivery of this
Agreement nor the performance by Conseco of its obligations hereunder will
(A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained, (B) result in a material breach of any of the terms and
provisions of, or constitute, with or without giving notice or lapse of
time or both, a material default under, any material agreement or
instrument to which Conseco is a party or by which it is bound, or (C)
conflict with any law, order, rule or regulation applicable to it of any
jurisdiction, court, federal or state regulatory body, administrative
agency or other governmental body, stock exchange or securities association
having jurisdiction over it or its properties or operations.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of the
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representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $15.00 per share, the number of Firm Securities set forth opposite the
name of such Underwriter in Schedule 1 hereto. One or more certificates in
definitive form for the Firm Securities that the several Underwriters have
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Company at least 48 hours prior to the Firm Closing Date, shall be delivered
by or on behalf of the Company to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer of immediately
available funds to an account designated by the Company at least 48 hours prior
to the Firm Closing Date. Such delivery of and payment for the Firm Securities
shall be made at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 A.M., New York time, on July __, 1998,
or at such other place, time or date as the Representatives and the Company may
agree upon or as the Representatives may determine pursuant to Section 9 hereof,
such time and date of delivery against payment being herein referred to as the
"Firm Closing Date". The Company will make such certificate or certificates for
the Firm Securities available for checking and packaging by the Representatives
at the offices in New York, New York of the Company's transfer agent or
registrar or of Prudential Securities Incorporated at least 24 hours prior to
the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3, plus, if the purchase and sale of any Option Securities takes place
after the Firm Closing Date and after the Firm Securities are trading "ex-
dividend", an amount equal to the dividends payable on such Option Securities.
The option granted hereby may be exercised as to
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all or any part of the Option Securities from time to time, but not more than
three times, within forty-five days after the date of the Prospectus (or, if
such 45th day shall be a Saturday or Sunday or holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representatives may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Company setting forth the aggregate
number of Option Securities as to which the several Underwriters are then
exercising the option and the date and time for delivery of and payment for such
Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
seven business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, is herein called the "Option Closing Date" with respect to
such Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) Simultaneous with delivery to the Underwriters of and payment
by the Underwriters for (i) the Firm Securities on the Firm Closing Date and
(ii) any Option Securities on the related Option Closing Date, the Manager and
Conseco jointly and severally agree to pay to the Underwriters an amount equal
to five percent (5%) of the purchase price per Share for each Share to be
purchased by the Underwriters on such date by wire transfer of immediately
available funds to an account designated by Prudential Securities Incorporated
for the respective accounts of the Underwriters purchasing the Shares on such
date.
(d) It is understood that any of you, individually and not as one
of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release of
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the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
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5. Covenants of the Company. (a) The Company covenants and agrees with each
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of the Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rule
497(b), (d) or (h), as the case may be, under the Act. During any
time when a prospectus relating to the Securities is required to be
delivered under the Act, the Company (A) will comply with all
requirements imposed upon it by the Act, the Investment Company Act
and the respective rules and regulations of the Commission thereunder
to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented, and (B) will
not file with the Commission the prospectus or the amendment referred
to in the third sentence of Section 2(a)(i) hereof, any amendment or
supplement to such prospectus or any amendment to the Registration
Statement of which the Representatives shall not previously have been
advised and furnished with a copy for a reasonable period of time
prior to the proposed filing and as to which filing the
Representatives shall not have given their consent. The Company will
prepare and file with the Commission, in accordance with the rules
and regulations of the Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any amendments to
the Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration
Statement to be declared effective by the Commission as promptly as
possible. The Company will advise the Representatives, promptly after
receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and
will provide evidence satisfactory to the Representatives of each
such filing or effectiveness.
(ii) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (A) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
or any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto,
(B) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, (C) the institution,
threatening or contemplation of any proceeding for any such purpose
or (D) any request made by the Commission for amending the
Registration Statement, for amending or supplementing the Prospectus
or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
12
(iii) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky
laws of such jurisdictions as the Representatives may designate and
will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Securities; provided,
--------
however, that in connection therewith the Company shall not be
-------
required to qualify as a foreign business trust or to execute a
general consent to service of process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final date
when a prospectus relating to the Securities is required to be
delivered under the Act or (B) the Option Closing Date, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit 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, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act, the Investment Company Act or the respective rules or
regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof and, subject to Section 5(a)(i)
hereof, will prepare and file with the Commission, at the Company's
expense, an amendment to the Registration Statement or an amendment
or supplement to the Prospectus that corrects such statement or
omission or effects such compliance.
(v) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters (X) a signed copy
of the Notification of Registration and (Y) a signed copy of the
registration statement originally filed with respect to the
Securities and each amendment thereto (in each case including
exhibits thereto), a conformed copy of the registration statement
originally filed with respect to the Securities and each amendment
thereto (in each case including exhibits thereto), certified by the
Secretary or an Assistant Secretary of the Company to be true and
complete copies thereof as filed with the Commission by electronic
transmission, (B) to each other Underwriter, a conformed copy of such
Notification of Registration and such registration statement and each
amendment thereto (in each case without exhibits thereto) and (C) so
long as a prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto
as the Representatives may reasonably request.
(vi) The Company, as soon as practicable but in no event
later than 60 days after the period covered thereby, will make
generally available to its security holders and to the
Representatives a consolidated earnings statement of the Company that
satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(vii) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the
Prospectus.
13
(viii) The Company will use its best efforts to list, subject
to notice of issuance, the Securities to be sold by it on the New
York Stock Exchange simultaneously with the effectiveness of the
Registration Statement.
(ix) During a period of five years from the effective
date of the Registration Statement, the Company will furnish to the
Representatives copies of all reports and other communications
(financial or other) furnished by the Company to its shareholders
and, as soon as available, copies of any reports or financial
statements furnished or filed by the Company to or with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed.
(x) The Company will not, directly or indirectly, without
the prior written consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to sell, contract to
sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of
sale, pledge, grant of any option to purchase or other sale or
disposition) of any Shares or any securities convertible into, or
exchangeable or exercisable for, Shares for a period of 180 days
after the date hereof, except pursuant to this Agreement and to the
Automatic Dividend Reinvestment Plan.
(xi) The Company and the Manager will not, directly or
indirectly, (i) take any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (B) pay
or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(xii) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the
Option Closing Date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your
opinion the market price of the Common Stock has been or is likely to
be materially affected (regardless of whether such rumor, publication
or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising
the Company to the effect set forth above, forthwith prepare, consult
with you concerning the substance of, and disseminate a press release
or other public statement, reasonably satisfactory to you, responding
to or commenting on such rumor, publication or event.
6. Expenses. (a) The Company agrees to pay all costs and expenses incident
--------
to the performance of the Company's obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto, the
14
Notification of Registration, any Preliminary Prospectus (including without
limitation, the expenses of printing the mailing folder for the Preliminary
Prospectus and the expenses of attaching the mailing folder to each Preliminary
Prospectus and of packaging each Preliminary Prospectus for distribution) and
the Prospectus and any amendment or supplement thereto, this Agreement, the
Management and Administration Agreement, the Custody Agreement, the Transfer and
Dividend Disbursing Agreement, and the Shareholder Servicing Agreement and any
blue sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the Manager, the Custodian and the counsel, the accountants and
any other experts or advisors retained by the Company or the Manager, (iv) the
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) any
listing of the Securities on the New York Stock Exchange, (viii) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities (other than
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company or the Manager to perform all obligations and satisfy
all conditions on its respective part to be performed or satisfied hereunder
other than by reason of a default by any of the Underwriters, the Company and
the Manager jointly and severally agree to reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. Neither the Company nor the
Manager shall in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
(b) If the Underwriters purchase the Firm Securities, the Company
will pay up to $250,000 to the Underwriters for out-of-pocket expenses incurred
in connection with the offering (including, but not limited to, advertising
relating to the offering of the Securities and travel expenses and the fees and
disbursements of counsel for the Underwriters). The Company will pay such amount
by permitting the Underwriters to deduct such amount from the proceeds payable
to the Company on the Firm Closing Date pursuant to Section 3(a) hereof.
7. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Manager contained herein
as of the date hereof and as of the Firm Closing Date, as if made on and as of
the Firm Closing Date, to the accuracy of the statements of the Company's and
the Manager's officers made pursuant to the provisions hereof, to the
performance by the Company and the Manager of its covenants and agreements
hereunder and to the following additional conditions:
15
(a) If the Registration Statement or any amendment thereto filed prior
to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Registration Statement or such amendment shall have been
declared effective not later than 11 A.M., New York time, on the date on which
the amendment to the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be, containing
information regarding the initial public offering price of the Securities has
been filed with the Commission, or such later time and date as shall have been
consented to by the Representatives; the Prospectus and any amendment or
supplement thereto shall have been filed with the Commission in the manner and
within the time period required by Rule 497(b), (d) or (h), as the case may be,
under the Act; no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no proceedings
for that purpose shall have been instituted or threatened or, to the knowledge
of the Company or the Representatives, shall be contemplated by the Commission;
and the Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to the
effect that:
(i) the Company has been duly organized and is validly
existing as a business trust in good standing under the laws of the
Commonwealth of Massachusetts and is duly qualified to transact
business and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company;
(ii) the Company has corporate power to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus, and the Company has corporate power to
enter into this Agreement, the Management and Administration
Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement and to
carry out all the terms and provisions hereof and thereof to be
carried out by it;
(iii) the Company is duly registered with the Commission
pursuant to Section 8 of the Investment Company Act as a closed-end
non-diversified management investment company; and the Company's
declaration of trust and by-laws comply in all material respects with
the Investment Company Act and the rules and regulations of the
Commission thereunder;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued
Shares have been duly authorized and validly issued and are fully
paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in
violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities; the Firm Securities have been
duly
16
authorized by all necessary corporate action of the Company and, when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; the
Securities have been duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange; no holders of
outstanding Shares are entitled as such to any preemptive or other rights
to subscribe for any of the Securities; and no holders of securities of the
Company are entitled to have such securities registered under the
Registration Statement;
(v) the statements set forth under the heading "Description of
Shares" in the Prospectus, insofar as such statements purport to summarize
certain provisions of the Shares or the Company's Declaration of Trust,
provide a fair summary of such provisions; the statements set forth under
the heading "Taxes" in the Prospectus, insofar as such statements purport
to summarize certain United States federal income tax considerations
relating to the Company and to acquisition, ownership and disposition of
shares, provide a fair summary of such considerations; and the statements
set forth under the headings "Dividends and Other Distributions" (in
respect of the second paragraph thereof) and "Automatic Dividend
Reinvestment Plan" in the Prospectus, insofar as such statements constitute
a summary of the legal matters, documents or proceedings referred to
therein, provide a fair summary of such legal matters, documents and
proceedings;
(vi) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company, and this
Agreement has been duly executed and delivered by the Company;
(vii) the execution and delivery of each of the Management and
Administration Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement have been
duly authorized by all necessary corporate action of the Company and the
Management and Administration Agreement, the Custody Agreement, the
Transfer and Dividend Disbursing Agreement, and the Shareholder Servicing
Agreement and the Automatic Dividend Reinvestment Plan comply with all
applicable provisions of the Investment Company Act and the Advisers Act,
and, assuming due authorization, execution and delivery by the other
parties thereto, the Management and Administration Agreement, the Custody
Agreement, the Transfer and Dividend Disbursing Agreement, and the
Shareholder Servicing Agreement are the legal, valid, binding, and
enforceable instruments of the Company and comply in all material respects
with the requirements of the Advisers Act and the Investment Company Act
and the respective rules and regulations of the Commission thereunder;
(viii) To the best knowledge of such counsel, (A) no legal or
governmental proceedings are pending to which the Company is a party or to
which the property of the Company is subject that are required to be
described in the Registration Statement or the Prospectus and are not
described therein, and, to
17
the best knowledge of such counsel, no such proceedings have been
threatened against the Company or with respect to any of its properties and
(B) no contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described therein or filed as
required;
(ix) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement, the Management and
Administration Agreement, the Custody Agreement, the Transfer and Dividend
Disbursing Agreement, and the Shareholder Servicing Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained
and such as may be required under state securities or blue sky laws, or (B)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, lease or other agreement or instrument, known to such counsel, to
which the Company is a party or by which the Company or any of its
properties are bound, or the declaration of trust or by-laws of the
Company, or any statute or any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator known to
such counsel and applicable to the Company;
(x) the Registration Statement is effective under the Act; the
filing of the Prospectus pursuant to Rule 497(b), (d) or (h), as the case
may be, has been made in the manner and within the time period required by
Rule 497(b), (d) or (h), as the case may be; and, to the best knowledge of
such counsel after reasonable inquiry, no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto has
been issued, and no proceedings for that purpose have been instituted or
threatened or, to the best knowledge of such counsel, are contemplated by
the Commission;
(xi) the Registration Statement originally filed with respect to
the Securities and each amendment thereto and the Prospectus (in each case,
other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of the
Act, the Investment Company Act and the respective rules and regulations of
the Commission thereunder;
(xii) To the best knowledge of such counsel, the Company is not
currently in breach of, or in default under, any written agreement or
instrument to which the Company is a party or by which it or its property
is bound or affected;
(xiii) The Shares have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance, and the Company's
Registration Statement on Form 8-A under the Exchange Act is effective;
18
(xiv) The form of the certificates for the Shares conform to the
requirements of Massachusetts law; and
(xv) The Company does not require any tax or other rulings to
enable it to qualify as a regulated investment company under Subchapter M
of the Code.
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date and the date of such opinion, included or includes 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. Such counsel may state
that the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus. Such counsel may also include a statement regarding
the potential for shareholders of the Company being held personally liable for
the obligations of the Company. In addition, such counsel need not express any
opinion or belief as to the financial statements contained in the Registration
Statement or the Prospectus.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company, the Manager and Conseco and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Xxxx X. Xxxx, Esq., general counsel of Conseco, to the effect
that:
(i) the Manager is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to transact business as a foreign corporation and is in good
standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Manager;
(ii) the Manager has corporate power to own or lease its properties
and conduct its business as described in the Registration Statement and the
Prospectus, and the Manager has corporate power to enter into this
Agreement and the Management and Administration Agreement and to carry out
all the terms and provisions hereof and thereof to be carried out by it;
(iii) the Manager is duly registered with the Commission as an
investment adviser under the Advisers Act; and the Manager is not
prohibited by
19
any provision of the Advisers Act or the Investment Company Act, or the
respective rules and regulations of the Commission thereunder, from
performing its obligations under the Advisory Agreement;
(iv) the execution and delivery of this Agreement and the
Management and Administration Agreement have been duly authorized by all
necessary corporate action of the Manager; this Agreement and the
Management and Administration Agreement have been duly executed and
delivered by the Manager; and, assuming due authorization, execution and
delivery by the Company, the Management and Administration Agreement is the
legal, valid, binding and enforceable instrument of the Manager and
complies in all material respects with the Advisers Act and the Investment
Company Act and the respective rules and regulations of the Commission
thereunder;
(v) the compliance by the Manager with the provisions of this
Agreement and the Management and Administration Agreement and the
consummation of the other transactions herein contemplated do not (i)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained,
(ii) result in a material breach or violation of any of the terms and
provisions of, or constitute a material default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Manager is a party or by which the Manager or any of its properties are
bound, or (iii) conflict with the charter documents or by-laws of the
Manager or any statute or any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator, stock
exchange or securities association known to such counsel and applicable to
the Manager;
(vi) the description of the Manager, Conseco and their respective
businesses contained in the Prospectus complies in all material respects
with the requirements of the Act and the Investment Company Act and the
respective rules and regulations of the Commission thereunder and, to the
best knowledge of such counsel after due inquiry, does not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) no legal or governmental proceedings are pending to which the
Manager is a party or to which the property of the Manager is subject that
are required to be described in the Registration Statement or the
Prospectus and are not described therein and, to the best knowledge of such
counsel, no such proceedings have been threatened against the Manager or
with respect to any of its properties;
(viii) Conseco is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Indiana and has
corporate power to enter into this Agreement and to carry out all the terms
and provisions hereof to be carried out by it; and
20
(ix) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of Conseco; this Agreement has
been duly executed and delivered by Conseco.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Manager and Conseco and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date of
such opinion.
(d) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Representatives shall have received from PricewaterhouseCoopers LLP
a letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
within the meaning of the Act, the Investment Company Act and the
respective rules and regulations thereunder;
(ii) in their opinion, the Statement of Assets, Liabilities and
Capital examined by them and included in the Registration Statement and the
Prospectus complies in form in all material respects with the applicable
accounting requirements of the Act, the Investment Company Act and the
respective rules and regulations of the Commission thereunder;
(iii) on the basis of a reading of the latest available interim
financial statements of the Company, carrying out certain specified
procedures (which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the shareholders, the
board of trustees and any committees thereof of the Company, and inquiries
of certain officials of the Company who have responsibility for financial
and accounting matters, nothing came to their attention that caused them to
believe that at a specific date not more than five business days prior to
the date of such letter, there were any changes in the shares of beneficial
interest or long-term debt of the Company or any decreases in stockholders'
equity of the Company, in each case compared with amounts shown on the
Statement of Assets and Liabilities included in the Registration Statement
and the Prospectus; and
21
(iv) they have recalculated certain data of a statistical or
financial nature identified by the Representatives and appearing in the
Prospectus, including without limitation, under the captions "Fee Table"
and "Other Investment Practices" and agree with the Company's calculation
of such data as set forth in the Prospectus.
In the event that the letters referred to above set forth any such changes
or decreases, it shall be a further condition to the obligations of the
Underwriters that (A) such letters shall be accompanied by a written explanation
of the Company as to the significance thereof, unless the Representatives deem
such explanation unnecessary, and (B) such changes or decreases do not, in the
sole judgment of the Representatives, make it impractical or inadvisable to
proceed with the purchase and delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Representatives shall have received a certificate, dated the Firm
Closing Date, of the principal executive officer and the principal financial or
accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Firm
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the best of the
Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company has not
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding, and there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the
22
Company, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
(g) The Representatives shall have received a certificate, dated the Firm
Closing Date, of the principal executive officer and the principal financial or
accounting officer of the Manager to the effect that:
(i) the representations and warranties of the Manager in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the description of the Manager or Conseco and their businesses
contained in the Prospectus, as amended or supplemented as of the Firm
Closing Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and
(ii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Manager has not
sustained any material loss or interference with its business or properties
from fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse
change, or any development involving a prospective material adverse change,
in the condition (financial or otherwise), business prospects, net worth or
results of operations of the Manager, except in each case as described in
or contemplated by the Prospectus (exclusive of any amendment or supplement
thereto).
(h) On or before the Firm Closing Date, the Representatives shall have
received from each Trustee and officer of the Company a letter, dated the Firm
Closing Date, containing the agreement of such Trustee and officer not to,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer to sell, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
Shares or any securities convertible into, or exchangeable or exercisable for,
Shares for a period of one year after the date hereof.
(i) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(j) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company and the Manager shall furnish to the
Representatives such conformed copies of such opinions,
23
certificates, letters and documents in such quantities as the Representatives
and counsel for the Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase
and pay for any Option Securities shall be subject, in their discretion, to each
of the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution. (a) The Company and the Manager jointly
--------------------------------
and severally (subject to clause (i) below) agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or the Manager in Section 2 of this Agreement; provided, however,
that under this clause (i) the Company shall be liable solely for untrue
statements or alleged untrue statements made by the Company in Section 2 of
this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or (B) any application or other document, including the
Notification of Registration, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with the
Commission or any securities association or securities exchange (each an
"Application"),
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in connection
with the marketing of the Securities that have been approved in writing or
provided, prepared or authorized by the Company ("Sales Material"),
including without limitation, slides, videos, films, tape recordings, and
will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action; provided,
24
however, that neither the Company nor the Manager will be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto,
any Application or any Sales Materials in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein;
and provided, further, that neither the Company nor the Manager will
-------- -------
be liable to any Underwriter or any person controlling such
Underwriter with respect to any such untrue statement or omission
made in any Preliminary Prospectus that is corrected in the
Prospectus (or any amendment or supplement thereto) if the person
asserting any such loss, claim, damage or liability purchased
Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented) at or prior to the
written confirmation of the sale of such Securities to such person in
any case where such delivery of the Prospectus (as amended or
supplemented) is required by the Act, unless such failure to deliver
the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(d) and (e) of this
Agreement. This indemnity agreement will be in addition to any
liability which the Company or the Manager may otherwise have.
Neither the Company or the Manager will, without the prior written
consent of the Underwriter or Underwriters purchasing, in the
aggregate more than fifty percent (50%) of the Securities, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such
Underwriter or any person who controls any such Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional
release of all of the Underwriters and such controlling persons from
all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and the Manager, each of the Company's trustees, each
of the Company's officers who signed the Registration Statement and each person,
if any, who controls the Company or the Manager within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Company or any such trustee, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, any Application or any Sales Material or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, any Application or any
Sales Material or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
25
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein; and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or the Manager or any such trustee, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
-------- -------
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable
26
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Manager on
the one hand (it being understood that for such purpose, the Company and the
Manager shall be treated as one entity) and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties 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 Company, the Manager or the Underwriters, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company, the Manager and the Underwriters agree that
it would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company or the
Manager within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company or the
Manager, as the case may be.
(e) Conseco agrees with the Underwriters that it shall be jointly and
severally liable with the Manager for the obligations of the Manager under this
Section 8.
9. Default of Underwriters. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten
27
percent or less of the aggregate number of Firm Securities or Option Securities
to be purchased by all of the Underwriters at such time hereunder, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Firm Closing Date or the related Option Closing
Date, as the case may be, the other Underwriters shall be obligated severally in
proportion to their respective commitments hereunder to purchase the Firm
Securities or Option Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase. If one or more Underwriters so default with
respect to an aggregate number of Securities that is more than ten percent of
the aggregate number of Firm Securities or Option Securities, as the case may
be, to be purchased by all of the Underwriters at such time hereunder, and if
arrangements satisfactory to the Representatives are not made within 36 hours
after such default for the purchase by other persons (who may include one or
more of the non-defaulting Underwriters, including the Representatives) of the
Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Manager other than as provided in Section 10 hereof. In the event
of any default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Securities or Option Securities, as the case may be. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9. Nothing herein shall relieve any defaulting
Underwriter from liability for its default.
10. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, the Manager, the
officers of the Company, the Manager and Conseco and the several Underwriters
set forth in this Agreement or made by or on behalf of them pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, the Manager, Conseco, any of
their officers or trustees, any Underwriter or any controlling person referred
to in Section 8 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6 and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to the
-----------
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company or
the Manager shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to the Firm Closing Date or such Option
Closing Date, respectively,
(i) the Company or the Manager shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or
any
28
development involving a prospective material adverse change
(including without limitation a change in management or control of
the Company or the Manager, as the case may be), in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company or the Manager, except in each case as
described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto);
(ii) trading in the Shares shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
minimum or maximum prices shall have been established;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political of financial
conditions having an effect on the U. S. financial markets that, in
the sole judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in the last
------------------------------------
paragraph on the front cover page and under the heading "Underwriting" in any
Preliminary Prospectus or the Prospectus (to the extent such statements relate
to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(a)(ii) and 8 hereof. The Underwriters confirm that such statements
(to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if sent to
-------
any of the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to Prudential Securities Incorporated, Xxx
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Transactions Group;
if sent to the Company, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Company at 00000 X. Xxxxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to
the Manager, shall be mailed, delivered or telegraphed and confirmed in writing
to the Manager at 00000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxx, Esq.; and if sent to Conseco, shall be mailed,
delivered or telegraphed and confirmed to it in writing to Conseco at 00000 X.
Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxx, Esq.
14. Successors. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company, the Manager, Conseco and
their respective successors and
29
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Company, the Manager and Conseco contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the trustees of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company or the Manager within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from any Underwriter shall be deemed a successor because of such
purchase.
30
[Conseco Strategic Income Fund Underwriting Agreement]
15. Limitation of Liability of Trustees and Shareholders. A copy of the
----------------------------------------------------
Company's Declaration of Trust is on file with the Secretary of the Commonwealth
of Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Company's Trustees as Trustees under the Declaration of Trust and
not individually. The Underwriters acknowledge and agree that the obligations of
the Company hereunder are not personally binding upon any of the Trustees or
shareholders of the Company but are binding only upon property of the Company.
16. Applicable Law. The validity and interpretation of this Agreement, and the
--------------
terms and conditions set forth herein, shall be governed by and construed in
accordance with the law of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
17. Counterparts. This Agreement may be executed in two or more counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. If signed in counterparts, the
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, the
Manager, Conseco and each of the several Underwriters.
Very truly yours,
CONSECO STRATEGIC INCOME FUND
By
-------------------------
Name:
Title:
CONSECO CAPITAL MANAGEMENT, INC.
By
-------------------------
Name:
Title:
CONSECO, INC.
By
-------------------------
Name:
Title:
31
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX, XXXXXX & CO.
XXXX XXXXX XXXX XXXXXX INCORPORATED
XxXXXXXX & COMPANY SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
By PRUDENTIAL SECURITIES INCORPORATED
By
------------------------------------
Name: Xxxx-Xxxxxx Canfin
Title: Managing Director
For itself and on behalf of the Representatives.
32
SCHEDULE 1
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- ------------
Prudential Securities Incorporated . . . . .
Xxxxxxx, Xxxxxx & Co.
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
XxXxxxxx & Company Securities, Inc.
Xxxxxx Xxxxxx & Company, Inc.
[Insert names of other Underwriters
----------------------------------
______
Total
======
33
