EXHIBIT h.1
_________ Shares
PIMCO HIGH INCOME FUND
Common Shares
UNDERWRITING AGREEMENT
April __, 2003
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, PIMCO High Income Fund, an unincorporated voluntary
association with transferable shares organized and existing under and by virtue
of the laws of The Commonwealth of Massachusetts (commonly referred to as a
Massachusetts business trust) (the "Fund") and PIMCO Advisors Fund Management
LLC, a Delaware limited liability company (the "Investment Adviser"), address
you as Underwriters and as the representatives (the "Representatives") of each
of the other persons, firms and corporations, if any, listed in Schedule I
hereto (herein collectively called "Underwriters"). The Fund proposes to issue
and sell an aggregate of _______ shares (the "Firm Shares") of its common shares
of beneficial interest, $0.00001 par value per share (the "Common Shares"), to
the several Underwriters. The Fund also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an additional
___________ Common Shares (the "Additional Shares"). The Firm
Shares and Additional Shares are hereinafter collectively referred to as the
"Shares". Unless otherwise stated, the term "you" as used herein means Citigroup
Global Markets Inc. individually on its own behalf and on behalf of the other
Representatives.
The Fund and the Investment Adviser wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Shares by the
Underwriters.
The Fund has entered into an Investment Management Agreement with the
Investment Adviser dated ____________, 2003, a Custodian Agreement with State
Street Bank and Trust Company dated __________, 2003 and a Transfer Agency
Services Agreement with PFPC Inc. dated ___________, 2003, and such agreements
are herein referred to as the "Management Agreement", the "Custodian Agreement"
and the "Transfer Agency Agreement", respectively. The Investment Adviser has
entered into a Portfolio Management Agreement with Pacific Investment Management
Company LLC, a Delaware limited liability company (the "Subadviser", and
together with the Investment Adviser, the "Advisers"), dated ___________, 2003
and such agreement is herein referred to as the "Portfolio Management
Agreement". Collectively, the Management Agreement, the Portfolio Management
Agreement, the Custodian Agreement and the Transfer Agency Agreement are herein
referred to as the "Fund Agreements". This Underwriting Agreement is herein
referred to as the "Agreement". In addition, the Fund has adopted a dividend
reinvestment plan (the "Dividend Reinvestment Plan") pursuant to which holders
of Shares shall have their dividends automatically reinvested in additional
Common Shares of the Fund unless they elect to receive such dividends in cash.
1. Registration Statement and Prospectus. The Fund has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act Rules and
Regulations") and the 1940 Act (the "1940 Act Rules and Regulations" and,
together with the 1933 Act Rules and Regulations, the "Rules and Regulations") a
registration statement on Form N-2 (File Nos. 333-103389 and 811-21311) under
the 1933 Act and the 1940 Act and may pursuant to the Rules and Regulations
prepare and file an additional registration statement relating to a portion of
the Shares pursuant to Rule 462(b) of the 1933 Act Rules and Regulations
(collectively, the "registration statement"), including a prospectus (including
any statement of additional information) relating to the Shares and a
notification of registration of the Fund as an investment company under the 1940
Act on Form N-8A (the "1940 Act Notification"). The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective under the 1933 Act or, if the registration statement became effective
under the 1933 Act prior to the execution of this Agreement, as amended or
supplemented thereto, and includes any information deemed to be included by Rule
430A under the 1933 Act Rules and Regulations. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed under the 1933 Act and must be declared
effective before the offering of the Shares may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. The term "Prospectus" as used in this
Agreement
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means the prospectus (including the statement of additional information) in the
form included in the Registration Statement or, if the prospectus (including the
statement of additional information) included in the Registration Statement
omits information in reliance on Rule 430A and such information is included in a
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the
term "Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
statement filed with the Commission on March 24, 2003 and as such prospectus
(including the statement of additional information) shall have been amended from
time to time prior to the date of the Prospectus, together with any other
prospectus (including any other statement of additional information) relating to
the Fund other than the Prospectus.
The Fund has furnished Citigroup Global Markets Inc. (the "Managing
Representative"), on behalf of each Representative, with copies of such
registration statement, each amendment to such registration statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell, Purchase and Compensate. The Fund hereby agrees,
subject to all the terms and conditions set forth herein, to issue and to sell
to each Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Investment Adviser herein contained and subject
to all of the other terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Fund, at a purchase
price per share of $14.325 per Share (the "purchase price per share"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set forth
herein, to issue and to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Fund and the Investment
Adviser herein contained and subject to all the terms and conditions set forth
herein, the Underwriters shall have the right to purchase from the Fund, at the
purchase price per share, pursuant to an option (the "over-allotment option")
which may be exercised at any time and from time to time prior to 9:00 P.M., New
York City time, on the 45th day after the date of the Prospectus (or if such
45th day shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of __________ Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Investment Adviser herein contained and subject to all of the other
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Fund the number of Additional Shares (subject
to such adjustments as the Representatives may determine to avoid fractional
shares) which bears the same proportion to the number of Additional Shares to be
purchased by the Underwriters as the number of Firm Shares set forth opposite
the name of such Underwriter in
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Schedule I (or such number of Firm Shares increased as set forth in Section 10
hereof) bears to the aggregate number of Firm Shares.
The Fund also agrees, subject to the terms and conditions set forth herein,
to sell to the Investment Adviser, and, upon the basis of representations and
warranties and agreements of the Fund contained herein, the Investment Adviser
shall have the right to purchase from the Fund, at the same purchase price per
share as the Underwriters shall pay for the Shares, up to an aggregate of 1,000
Shares (the "Investment Adviser Shares").
3. Terms of Public Offering . The Fund and the Investment Adviser have been
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares and compensation of the Underwriters with respect thereto shall
be made at the office of Citigroup Global Markets Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00
A.M., New York City time, on April 30, 2003 (the "Closing Date"). The place
of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters and compensation of
the Underwriters with respect thereto shall be made at the aforementioned
office of Citigroup Global Markets Inc. or through the facilities of the
Depository Trust Company or other mutually agreeable facility at such time
on such date (an "Option Closing Date"), which may be the same as the
Closing Date, but shall in no event be earlier than the Closing Date nor
earlier than two nor later than three business days after the giving of the
notice hereinafter referred to, as shall be specified in a written notice
from you on behalf of the Underwriters to the Fund of the Underwriters'
determination to purchase a number, specified in said notice, of Additional
Shares. The place of closing for any Additional Shares and the Option
Closing Date for such Additional Shares may be varied by agreement between
you and the Fund.
5. Agreements of the Fund and the Investment Adviser. The Fund and the
Investment Adviser, jointly and severally, agree with the several Underwriters
as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
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Registration Statement has become effective and the Prospectus contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the 1933 Act Rules and Regulations, the Fund will file a prospectus including
such information pursuant to Rule 497(h) of the 1933 Act Rules and Regulations,
as promptly as practicable, but no later than the second business day following
the earlier of the date of the determination of the offering price of the Shares
or the date the Prospectus is first used after the effective date of the
Registration Statement. If the Registration Statement has become effective and
the Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act Rules and
Regulations as promptly as practicable, but no later than the fifth business day
following the date of the later of the effective date of the Registration
Statement or the commencement of the public offering of the Shares after the
effective date of the Registration Statement. The Fund will advise you promptly
and, if requested by you, will confirm such advice in writing (i) when the
Registration Statement or such post-effective amendment has become effective and
(ii) when the Prospectus has been timely filed pursuant to Rule 497(c) or Rule
497(h) of the 1933 Act Rules and Regulations or the certification permitted
pursuant to Rule 497(j) of the 1933 Act Rules and Regulations has been timely
filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission,
within three years after the date of this Agreement, for amendment of or a
supplement to the Registration Statement, any Prepricing Prospectus or the
Prospectus (or any amendment or supplement to any of the foregoing) or for
additional information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state securities
commission, any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative agency or any
official, within three years after the date of this Agreement, of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any sales
material (as hereinafter defined), of any notice pursuant to Section 8(e) of the
1940 Act, of the suspension of qualification of the Shares for offering or sale
in any jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by the Fund, the Investment
Adviser or any representative or attorney of the Fund or the Investment Adviser,
within three years after the date of this Agreement, of any other material
communication from the Commission, the NASD, any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official relating to the Fund, the Registration Statement, the 1940 Act
Notification, the Prospectus, any Prepricing Prospectus, any sales material (as
hereinafter defined) (or any amendment or supplement to any of the foregoing),
this Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material, adverse change in the
condition (financial or other), business, properties, net assets or results of
operations of the Fund or the Advisers or of the happening of any event which
makes any statement of a material fact made in the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or
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supplement to any of the foregoing) untrue or which requires the making of
any additions to or changes in the Registration Statement, the Prospectus,
any Prepricing Prospectus or any sales materials (as hereinafter defined)
(or any amendment or supplement to any of the foregoing) in order to state
a material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing) to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
or order of any court or regulatory body. If at any time the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) If not delivered prior to the date hereof, the Fund will furnish
to you, without charge, a copy of the registration statement and the 1940
Act Notification as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits thereto
(except any post-effective amendment which is filed with the Commission
after the later of (x) one year from the date of this Agreement and (y) the
date on which the distribution of the Shares is completed) and will also
furnish to you, without charge, such number of conformed copies of the
registration statement as originally filed and of each amendment thereto
(except any post-effective amendment which is filed with the Commission
after the later of (x) one year from the date of this Agreement and (y) the
date on which the distribution of the Shares is completed), with or without
exhibits, as you may reasonably request.
(d) Within three years after the date of this Agreement, the Fund will
not (i) file any amendment to the registration statement or make any
amendment or supplement to the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) of which you shall not previously have been advised
or to which you shall reasonably object within a reasonable time after
being so advised or (ii) so long as, in the reasonable opinion of counsel
for the Underwriters, a Prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior
to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of
6
each form of any Prepricing Prospectus. The Fund consents to the use, in
accordance with the provisions of the 1933 Act and with the securities or
Blue Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time, for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is required
by the 1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will deliver to each Underwriter, without
charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. The Fund consents to the
use of the Prospectus (and of any amendments or supplements thereto) in
accordance with the provisions of the 1933 Act, with the securities or Blue
Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold and with
other applicable laws and regulations, both in connection with the offering
or sale of the Shares and for such period of time thereafter as the
Prospectus is required by law to be delivered in connection with sales of
Shares by any Underwriter or dealer. If during such period of time any
event shall occur that in the judgment of the Fund or in the reasonable
opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or if it is necessary to
supplement or amend the Prospectus to comply with the 1933 Act, the 1940
Act, the Rules and Regulations or any other law, rule or regulation, the
Fund will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate amendment or supplement
thereto and will furnish to the Underwriters, without charge, such number
of copies thereof as they shall reasonably request; provided, if the
amendment or supplement is required as a result of a misstatement in or
omission from the information provided to the Fund by the Underwriters in
writing, the Fund may deliver such amendment or supplement to the
Underwriters at cost. In the event that the Prospectus is to be amended or
supplemented, the Fund, if reasonably requested by you, will promptly issue
a press release announcing or disclosing any material matters to be covered
by the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in the judgment of the Fund in order to
effect such registration or qualification; provided that in no event shall
the Fund be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
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(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years after the date of this Agreement,
the Fund will furnish to you (i) as soon as publicly available, a copy of
each report of the Fund mailed to shareholders or filed with the Commission
and (ii) from time to time such other information concerning the Fund as
you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Investment Adviser to comply with
the terms or fulfill any of the conditions (subject to any applicable
qualifications contained in such terms or conditions) of this Agreement,
the Fund and the Investment Adviser, jointly and severally, agree to
reimburse the Representatives for all out-of-pocket expenses (including
fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith, but the Fund and the Investment Adviser shall in no
event be liable for any internal cost of the Underwriters or any loss of
anticipated profits or speculative, consequential or similar damages for
such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of Citigroup Global Markets Inc.
(n) Except for (i) tender offers, (ii) Share repurchases and the
issuance or purchase of Shares pursuant to any dividend reinvestment plan
of the Fund in effect on the date hereof, effected following the date on
which the distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus and (iii) sale of the
Investment Adviser Shares to the Investment Adviser pursuant to this
Agreement, neither the Fund nor the Investment Adviser has taken nor will
either of them
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take, directly or indirectly, any action designed or which might be
reasonably expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares in violation of
applicable federal securities laws; provided that, for sake of clarity, no
action taken by an Underwriter that is an affiliate of the Fund shall be
deemed to be taken, directly or indirectly, by the Fund for purposes of
this section. For the avoidance of any doubt, stabilization transactions
conducted by the Underwriters shall not be deemed to be actions of the Fund
or the Investment Adviser.
(o) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the New York Stock
Exchange (the "NYSE") concurrently with the effectiveness of the
registration statement and to comply with the rules and regulations of such
exchange.
(p) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Xxxxxxxx-Xxxxx Act of 2002, and will use its best efforts to cause the
Fund's trustees and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the
provisions of the Xxxxxxxx-Xxxxx Act of 2002.
6. Representations and Warranties of the Fund and the Investment Adviser.
The Fund and the Investment Adviser, jointly and severally, represent and
warrant to each Underwriter that, as of the date hereof or at such other time or
times identified below:
(a) Each Prepricing Prospectus complied in all material respects with
the provisions of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and the Registration Statement, in the form
in which it became or becomes effective and also in such form as it may be
when any post-effective amendment thereto shall become effective and the
Prospectus did not or will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading;
except that this representation and warranty does not apply to statements
in or omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Fund in
writing by or on behalf of any Underwriter through you expressly for use
therein.
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(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable; the Shares have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and, except as described in the Registration Statement,
nonassessable and the capital stock of the Fund conforms to the description
thereof in the Registration Statement and the Prospectus. Except as
contemplated in the Registration Statement or by this Agreement, no person
is entitled to any preemptive or other similar rights with respect to the
Shares.
(d) The Fund has been duly formed and is validly existing in good
standing as an unincorporated voluntary association with transferable
shares organized and existing under and by virtue of the laws of The
Commonwealth of Massachusetts (commonly referred to as a Massachusetts
business trust), with full power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register
or to qualify does not have a material, adverse effect on the condition
(financial or other), business, properties, net assets or results of
operations of the Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation in any material respects of its
Amended and Restated Agreement and Declaration of Trust (the "Declaration
of Trust") or By-Laws or in violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or
of any material decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund or in breach or
default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness or in any material agreement, indenture,
lease or other instrument to which the Fund is a party or by which it or
any of its properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the
10
consummation by the Fund of the transactions contemplated hereby or thereby
(A) requires any consent, approval, authorization or other order of or
registration or filing with the Commission, the NASD, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
(except such as (i) have been obtained under the 1933 Act, the 1934 Act,
the 1940 Act or the Investment Advisers Act of 1940, as amended (the
"Adviser's Act"), (ii) may be required by the NYSE or under the securities
or Blue Sky laws of various jurisdictions which have been or will be
effected in accordance with this Agreement and (iii) may be required to
comply with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of the Declaration of Trust or By-Laws of the Fund or
(B) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound or materially violates or will materially violate
any material statute, law, regulation (other than state securities or Blue
Sky laws) or filing or judgment, injunction, order or decree applicable to
the Fund or any of its properties or will result in the creation or
imposition of any material lien, charge or encumbrance upon any property or
assets of the Fund pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, other than the securities or
Blue Sky laws of various jurisdictions which have been or will be effected
in accordance with this Agreement.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Fund, whether or not arising in the ordinary course of
business, (B) there have been no transactions entered into by the Fund
which are material to the Fund other than those in the ordinary course of
its business as described in the Prospectus (and any amendment or
supplement thereto) or as contemplated by this Agreement, and (C) there has
been no dividend or distribution of any kind declared, paid or made by the
Fund on any class of its common stock.
(i) To the knowledge of the Fund and the Investment Adviser, based on
representations of said accountants, the accountants,
PricewaterhouseCoopers LLP, who have audited or shall audit the Statement
of Assets and Liabilities included or incorporated by reference in the
Registration Statement and the Prospectus, are an independent public
accounting firm as required by the 1933 Act, the 1940 Act and the Rules and
Regulations.
(j) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement
or the Prospectus present fairly in all material respects the financial
position of the Fund on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply; and
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein.
11
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement
(for the avoidance of any doubt, this provision does not apply to
compliance with state securities or Blue Sky laws of any jurisdiction).
(l) The execution and delivery of, and the performance by the Fund of
its obligations under, this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus, subsequent to the respective dates as of which such information
is given in the Registration Statement and the Prospectus, the Fund has not
incurred any liability or obligation, direct or contingent or entered into
any transaction, not in the ordinary course of business, that is material
to the Fund and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the Fund or
any material, adverse change or any development involving or which should
reasonably be expected to involve a material, adverse change in the
condition (financial or other), business, properties, net assets or results
of operations of the Fund.
(n) The Fund has not distributed to the public and, prior to the later
to occur of (i) the Closing Date and (ii) completion of the distribution of
the Shares, will not distribute to the public any offering material in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prepricing Prospectus included in Pre-Effective
Amendment No. 1 to the Registration Statement, the Prospectus and the
advertisements/sales literature provided to Xxxxxxx Xxxxxxx & Xxxxxxxx to
be filed on behalf of Citigroup Global Markets Inc. with the NASD.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus, except where such failure would not reasonably be expected to
have a material, adverse effect on the Fund; the Fund has fulfilled and
performed all its material obligations with respect to such permits and, to
the knowledge of the Fund, no event has occurred which allows or, after
notice or lapse of time, would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Fund under
any such permit, subject in each case to such qualification as may be set
forth in the Prospectus (and any amendment or supplement thereto); and,
except as described in the Prospectus (and any amendment or supplement
12
thereto), none of such permits contains any restriction that is materially
burdensome to the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the provisions of the Internal Revenue Code of
1986, as amended (the "Code") applicable to a regulated investment company;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles, to calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and records
requirements under the 1940 Act and the 1940 Act Rules and Regulations;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded account for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) To the Fund's knowledge, neither the Fund nor any employee or
agent of the Fund has made any payment of funds of the Fund or received or
retained any funds, which payment, receipt or retention of such funds is of
a character required to be disclosed in the Prospectus and that is not so
disclosed.
(r) The Fund has filed all tax returns required to be filed and the
Fund is not in material default in the payment of any taxes which were
shown as payable on said returns or any assessments with respect thereto.
(s) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license, except where the failure to so
own, possess or license would not have a material, adverse effect on the
Fund.
(t) Except for (i) tender offers, (ii) Share repurchases and the
issuance or purchase of Shares pursuant to any dividend reinvestment plan
of the Fund in effect on the date hereof, effected following the date on
which the distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus and (iii) sale of the
Investment Adviser Shares to the Investment Adviser pursuant to this
Agreement, the Fund has not taken and will not take, directly or
indirectly, any action designed or which might be reasonably expected to
cause or result in, or which will constitute, stabilization or manipulation
of the price of the Shares in violation of applicable federal securities
laws; provided that, for sake of clarity, no action taken by an Underwriter
that is an affiliate of the Fund shall be deemed to be taken, directly or
indirectly, by the Fund for purposes of this section. For the avoidance of
any doubt, stabilization transactions conducted by the Underwriters shall
not be deemed to be actions of the Fund.
13
(u) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and
at the time of filing any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the
Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(v) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by the Fund or the Advisers for use in connection
with the offering and sale of the Shares (collectively, "sales material")
complied and comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Rules and Regulations and the
rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were provided to Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, for filing. No sales material
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(w) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the rules and regulations
adopted by the Commission under the Advisers Act (the "Advisers Act Rules
and Regulations").
(x) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(y) The Shares have been duly authorized for listing upon notice of
issuance on the NYSE and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(z) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
(aa) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no trustee
of the Fund is an "interested person" (as defined in the 0000 Xxx) of the
Fund or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter listed in Schedule I hereto.
14
7. Representations and Warranties of the Investment Adviser. The Investment
Adviser represents and warrants to each Underwriter that, as of the date hereof
or at such other time or times identified below:
(a) Each of the Advisers is a duly formed limited liability company
and is validly existing in good standing under the laws of the State of
Delaware. Each Adviser has full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or conduct of its business
requires such registration or qualification, except where the failure so to
register or to qualify would not have a material, adverse effect on the
Investment Adviser's or Subadviser's ability to provide services on behalf
of the Fund.
(b) Each of the Advisers is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the 1940
Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting for the Fund under the Fund Agreements to which it
is a party as contemplated by the Registration Statement and the
Prospectus.
(c) Each of the Advisers has full power and authority to enter into
this Agreement and the Fund Agreements to which it is a party; the
execution and delivery of, and the performance by each Adviser of its
obligations under, this Agreement and the Fund Agreements to which it is a
party have been duly and validly authorized by each Adviser; and this
Agreement and the Fund Agreements to which it is a party have been duly
executed and delivered by each Adviser and constitute the valid and legally
binding agreements of such Adviser, enforceable against such Adviser in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Each of the Advisers 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 and under
this Agreement and the Fund Agreements to which it is a party.
(e) The description of each Adviser and its business, and the
statements attributable to each Adviser, in the Registration Statement and
the Prospectus complied and comply in all material respects with the
provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and do not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading.
15
(f) There are no legal or governmental proceedings pending or, to the
knowledge of each Adviser, threatened against such Adviser or to which any
of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required
or that reasonably should result in any material, adverse change in the
condition (financial or other), business, properties, net assets or results
of operations of such Adviser or that reasonably should have a material,
adverse effect on the ability of such Adviser to fulfill its obligations
hereunder or under the Fund Agreements to which it is a party.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of either Adviser, whether or not arising from the ordinary
course of business and (B) there have been no transactions entered into by
either Adviser which are material to such Adviser other than those in the
ordinary course of its business as described in the Prospectus.
(h) Each of the Advisers has such licenses, permits and authorizations
of governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described in the
Prospectus; each of the Advisers has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of such Adviser under any such permit, other than impairments that
would not reasonably be expected to have a material, adverse effect on the
Investment Adviser or Subadviser, as applicable.
(i) This Agreement and each of the Management Agreement and the
Portfolio Management Agreement comply in all material respects with all
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations,
the Advisers Act and the Advisers Act Rules and Regulations.
(j) Neither the execution, delivery or performance of this Agreement
or the Fund Agreements by each Adviser which is a party thereto, nor the
consummation by each Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other order of
or registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement, compliance with NYSE
rules and compliance with the filing requirements of the NASD Division of
Corporate Finance) or conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, the limited liability
company agreement or other organizational documents of such Adviser or (B)
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any material agreement, indenture, lease or other
instrument to which either Adviser is a party or by which it or
16
any of its properties is bound or materially violates or will materially
violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to either Adviser or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of either Adviser
pursuant to the terms of any agreement or instrument to which it is a party
or by which it is bound or to which any of the property or assets of such
Adviser is subject.
(k) Except for (i) tender offers, (ii) Share repurchases and the
issuance or purchase of Shares pursuant to any dividend reinvestment plan
of the Fund in effect on the date hereof, effected following the date on
which the distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus and (iii) sale of the
Investment Adviser Shares to the Investment Adviser pursuant to this
Agreement, neither Adviser has taken nor will either Adviser take, directly
or indirectly, any action designed or which might be reasonably expected to
cause or result in, or which will constitute, stabilization or manipulation
of the price of the Shares in violation of applicable federal securities
laws; provided that, for sake of clarity, no action taken by an Underwriter
that is an affiliate of the Fund shall be deemed to be taken, directly or
indirectly, by either Adviser for purposes of this section. For the
avoidance of any doubt, stabilization transactions conducted by the
Underwriters shall not be deemed to be actions of the Advisers.
(l) In the event that the Fund or the Advisers makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of a proprietary Internet web
site administered by such party or similar electronic means, the Fund or
the Advisers will install and maintain pre-qualification and
password-protection or similar procedures which are reasonably designed to
restrict access to such promotional materials by persons other than
qualified broker-dealers and representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Investment Adviser, jointly and severally, agree
to indemnify and hold harmless each of you and each other Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against
any and all losses, claims, damages, liabilities and expenses, joint or
several (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, any
Prepricing Prospectus, any sales material (or any amendment or supplement
to any of the foregoing) or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the
17
Fund or the Investment Adviser by or on behalf of any Underwriter through
you expressly for use in connection therewith; provided, however, that the
foregoing indemnity with respect to the Registration Statement, the
Prospectus or any Prepricing Prospectuses (or any amendment or supplement
to any of the foregoing) shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage, liability or
expense purchased Shares, if it is shown that a copy of the Prospectus, as
then amended or supplemented, which would have cured any defect giving rise
to such loss, claim, damage, liability or expense was not sent or delivered
to such person by or on behalf of such Underwriter, if required by law to
be so delivered, at or prior to the confirmation of the sale of such Shares
to such person and such Prospectus, amendments and supplements had been
provided by the Fund to the Underwriters in the requisite quantity and on a
timely basis to permit proper delivery. The foregoing indemnity agreement
shall be in addition to any liability which the Fund or the Investment
Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Investment Adviser, such
Underwriter or such controlling person shall promptly notify the Fund or
the Investment Adviser in writing of the institution of the action, suit or
proceeding and the Fund or the Investment Adviser shall assume the defense
thereof, including the employment of counsel and the payment of all fees
and expenses. Such Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or controlling
person unless (i) the Fund or the Investment Adviser has agreed in writing
to the employment of such counsel and the payment of such fees and expenses
in connection with the defense of such action, suit or proceeding, (ii) the
Fund and the Investment Adviser have failed within a reasonable period of
time in light of the circumstances known to the Fund or the Investment
Adviser, as the case may be, to assume the defense and employ counsel or
(iii) the named parties to any such action, suit or proceeding (including
any impleaded parties) include both such Underwriter or such controlling
person and the Fund or the Investment Adviser and such Underwriter or such
controlling person shall have been advised by its counsel that
representation of such indemnified party and the Fund or the Investment
Adviser by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by
the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Fund and the Investment Adviser
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the Fund and the Investment Adviser shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances
be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any action, suit or
proceeding in more than one jurisdiction) at any time for all such
Underwriters and controlling persons, which firm shall be designated in
writing by Citigroup Global Markets Inc. and that, subject to the
requirements of 1940 Act Release No. 11330, all such fees and expenses
shall be
18
reimbursed promptly as they are incurred. The Fund and the Investment
Adviser shall not be liable for any settlement of any such action, suit or
proceeding effected without the written consent of the Fund or the
Investment Adviser, but if settled with such written consent or if there be
a final judgment for the plaintiff in any such action, suit or proceeding,
the Fund and the Investment Adviser agree to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, liability, damage or
expense by reason by such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Investment Adviser, and any of their
respective trustees, directors, shareholders, partners, managers, members
and officers (including any officers of the Fund who sign the Registration
Statement) and any person who controls the Fund or the Investment Adviser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and the successors and assigns of the foregoing, to the same extent as
the foregoing indemnity from the Fund and the Investment Adviser to each
Underwriter, but only with respect to information furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (or any amendment or supplement to any of the foregoing). If
any action, suit or proceeding shall be brought against the Fund or the
Investment Adviser, any of their trustees, directors, partners, managers,
members, shareholders, officers or any such controlling person, based on
the Registration Statement, the Prospectus, any Prepricing Prospectus or
any sales material (or any amendment or supplement to any of the foregoing)
and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights and
duties given to the Fund and the Investment Adviser by paragraph (b) above
(except that if the Fund or the Investment Adviser shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's
expense) and the Fund and the Investment Adviser, their trustees,
directors, partners, managers, members, shareholders, officers and any such
controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
(d) If the indemnification provided for in this section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the Fund and the Investment Adviser on
the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand (treated jointly for this purpose as one
person) from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also
19
the relative fault of the Fund and the Investment Adviser on the one hand
(treated jointly for this purpose as one person) and of the Underwriters on
the other hand (treated jointly for this purpose as one person) in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund and
the Investment Adviser on the one hand (treated jointly for this purpose as
one person) and the Underwriters on the other hand (treated jointly for
this purpose as one person) shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Fund as set forth in the table on the cover page of the Prospectus and the
total payments received by the Underwriters with respect to the Firm Shares
as set forth in the table on the cover page of the Prospectus, bear to the
aggregate public offering price of the Shares. The relative fault of the
Fund and the Investment Adviser on the one hand (treated jointly for this
purpose as one person) and of the Underwriters on the other hand (treated
jointly for this purpose as one person) shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Fund and the Investment Adviser on
the one hand (treated jointly for this purpose as one person) or by the
Underwriters on the other hand (treated jointly for this purpose as one
person) and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Fund, the Investment Adviser and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section
8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price of the Shares underwritten by
it and distributed to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are
several in proportion to the respective number of Firm Shares set forth
opposite their names in Schedule I (or such numbers of Firm Shares
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such
20
settlement includes an unconditional release of such indemnified party from
all liability from claimants on claims that are the subject matter of such
action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the Investment Adviser set
forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Fund, the
Investment Adviser or their shareholders, trustees, directors, managers,
members or officers or any person controlling the Fund or the Investment
Adviser (control to be determined within the meaning of Section 15 of the
1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx), (xx) acceptance of any Shares and
payment therefor hereunder and (iii) any termination of this Agreement. A
successor to any Underwriter or to the Fund, the Investment Adviser or
their shareholders, trustees, directors, managers, members or officers or
any person controlling any Underwriter, the Fund or the Investment Adviser
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8. The Fund and the
Investment Adviser and each Underwriter agree promptly to notify each other
of the commencement of any action, suit or proceeding against it and, in
the case of the Fund or the Investment Adviser, against any of the Fund's
or the Investment Adviser's shareholders, partners, trustees, managers,
members or officers in connection with the issuance and sale of the Shares,
or in connection with the Registration Statement or Prospectus.
Notwithstanding any other provision in this Section 8, no person shall
be entitled to indemnification or contribution under this Agreement against
any loss, claim, damage, liability or expense arising by reason of such
person's willful misfeasance, bad faith, gross negligence or reckless
disregard in the performance of its duties and obligations hereunder.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase any Shares hereunder are subject to the accuracy of and
compliance with the representations, warranties and agreements of and by the
Fund and the Investment Adviser contained herein on and as of the date hereof,
the date on which the Registration Statement becomes or became effective, the
date of the Prospectus (and of any amendment or supplement thereto), the Closing
Date and, with respect to such obligations as they pertain to any Additional
Shares, any Option Closing Date; to the accuracy and completeness of all
statements (subject to any applicable qualifications contained therein) made by
the Fund, the Investment Adviser or any of their officers in any certificate
delivered to the Representatives or their counsel pursuant to this Agreement and
to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such
21
post-effective amendment shall have become effective not later than 5:30
p.m., New York City time, on the date hereof or at such later date and time
as shall be consented to in writing by you and all filings, if any,
required by Rules 497 and 430A under the 1933 Act Rules and Regulations
shall have been timely made; no order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Fund, the
Investment Adviser or any Underwriter, threatened by the Commission and any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) You shall have received on the Closing Date two opinions of Ropes
& Xxxx, counsel for the Fund, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, substantially in the form
of Exhibits A1 and A2 to this Agreement.
(c) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxx, Esq., internal counsel for the Investment Adviser, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, substantially in the form of Exhibit B to this Agreement.
(d) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxx Esq., internal counsel for the Investment Adviser, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, regarding the Subadviser and substantially in the form of
Exhibit C to this Agreement.
(e) You shall have received on the Closing Date an opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, with
respect to such matters as the Underwriters may require and the Fund, the
Investment Adviser and their respective counsels shall have furnished to
such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(f) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and
the Closing Date from PricewaterhouseCoopers LLP, independent certified
public accountants, substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the registration
statement or the Registration Statement or prohibiting or suspending the
use of the Prospectus (or any amendment or supplement thereto) or any
Prepricing Prospectus or any sales material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an
enforcement action against the Fund, the Advisers or, with respect to the
transactions contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, any Underwriter, may be pending before or, to
the knowledge of the Fund, the Advisers or any Underwriter, shall be
threatened or contemplated by the
22
Commission at or prior to the Closing Date and that any request for
additional information on the part of the Commission (to be included in the
Registration Statement, the Prospectus or otherwise) be complied with to
the satisfaction of the Representatives; (ii) since the date as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any change in the capital stock of the Fund nor
any material increase in debt of the Fund from that set forth in the
Prospectus and the Fund shall not have sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto); (iii) since the date
of the Prospectus there shall not have been any material, adverse change in
the condition (financial or other), business, properties, net assets or
results of operations of the Fund or the Advisers; (iv) the Fund and the
Advisers must not have sustained any material loss or interference with
their business from any court or from legislative or other governmental
action, order or decree or from any other occurrence not described in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them); and (v) all of the representations and warranties of
the Fund and the Investment Adviser contained in this Agreement shall be
true and correct (subject to any applicable qualifications contained
therein) on and as of the date hereof and as of the Closing Date as if made
on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement and prior to
the Closing Date, there shall not have occurred (i) any change or any
development involving a prospective change in or affecting the condition
(financial or other), business, properties, net assets or results of
operations of the Fund or the Advisers not contemplated by the Prospectus
(and any amendment or supplement thereto), which would materially,
adversely affect the market for the Shares or (ii) any event or development
relating to or involving the Fund, the Advisers or any officer or trustee
or director of the Fund or the Advisers which makes any statement of a
material fact made in the Prospectus (or any amendment or supplement
thereto) untrue or which requires the making of any addition to or change
in the Prospectus (or any amendment or supplement thereto) in order to
state a material fact required by the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, if amending or supplementing the Prospectus (or
any amendment or supplement thereto) to reflect such event or development
would materially, adversely affect the market for the Shares.
(i) That neither the Fund nor the Investment Adviser shall have failed
at or prior to the Closing Date to have performed or complied in all
material respects with any of the agreements herein contained and required
to be performed or complied with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of the managing director, president or any vice president
and of the chief financial officer, controller or treasurer of each of the
Fund and the Investment Adviser certifying that (i) the signers have
carefully examined the Registration Statement, the Prospectus and this
Agreement, (ii) the representations and warranties of the Fund (with
respect to the certificates from such Fund officers) and the
representations of the Investment
23
Adviser (with respect to the certificates from such officers of the
Investment Adviser) in this Agreement are true and correct on and as of the
date of the certificate as if made on such date, (iii) since the date of
the Prospectus there has not been any material, adverse change in the
condition (financial or other), business, properties, net assets or results
of operations of the Fund (with respect to the certificates from such Fund
officers) or the Advisers (with respect to the certificates from such
officers of the Investment Adviser), (iv) to the knowledge of such officers
after reasonable investigation, no order suspending the effectiveness of
the Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Advisers (with respect to the
certificates from such officers of the Investment Adviser) has been issued
and no proceedings for any such purpose are pending before or threatened by
the Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Investment Adviser (with
respect to certificates from such officers of the Investment Adviser) has
performed and complied with all agreements that this Agreement requires it
to perform by such Closing Date to the extent not waived by the Managing
Representative, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Advisers (with respect to the
certificate from such officers of the Investment Adviser) has sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree or from any other
occurrence not described in the Registration Statement and the Prospectus
and any amendment or supplement to either of them and (vii) with respect to
the certificate from such officers of the Fund, there has not been any
change in the capital stock of the Fund nor any material increase in the
debt of the Fund from that set forth in the Prospectus and the Fund has not
sustained any material liabilities or obligations, direct or contingent,
other than those reflected in the Prospectus (and any amendment or
supplement thereto).
(k) That the Fund, the Investment Adviser and the Subadviser shall
have furnished to you such further certificates, documents and opinions of
counsel as are listed in Schedule II hereto.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by the
Fund or the Advisers, as applicable, to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund and the Investment Adviser
contained herein on and as of the
24
Option Closing Date as though made on any Option Closing Date, (ii)
satisfaction on and as of any Option Closing Date of the conditions set
forth in this Section 9 except that, if any Option Closing Date is other
than the Closing Date, the certificates, opinions and letters referred to
in paragraphs (b), (c), (d), (e), (f), (j), (k) and this paragraph shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (b), (c), (d) and (e) shall be revised to reflect the sale of
Additional Shares and (iii) the absence of circumstances on or prior to the
Option Closing Date which would permit termination of this Agreement
pursuant to Section 11 hereof if they existed on or prior to the Closing
Date.
10. Effective Date of Agreement. This Agreement shall become effective: (i)
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters, to purchase Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Fund for the purchase of such Firm
Shares by one or more non-defaulting Underwriters or other party or parties
reasonably satisfactory to the Managing Representative and the Fund are not made
within 72 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Fund. In any such
case which does not result in termination of this Agreement, either you or the
Fund shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability to the Fund, the Investment Adviser or any
non-defaulting Underwriter in respect to any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Fund,
purchases Firm Shares which a defaulting Underwriter agreed, but failed or
refused, to purchase.
25
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriters to the Fund or the Investment Adviser, by notice given to the Fund
or the Investment Adviser prior to delivery of and payment for the Firm Shares
and any Additional Shares, as the case may be, if at any time prior to such time
(i) trading in the Fund's Common Shares shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices for trading in securities generally
shall have been established on such Exchange, (ii) a commercial banking
moratorium shall have been declared by either federal or New York state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets in the United
States is such as to make it, in your sole judgment, impracticable or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Prospectus (exclusive of any supplement thereto). Notice of
such termination may be given to the Fund or the Investment Adviser by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
12. Expenses. If the transactions contemplated by this Agreement are
consummated, the Fund agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by the Fund of its
obligations hereunder (to the extent such expenses do not, in the aggregate,
exceed $0.03 per Share): (a) the preparation, printing or reproduction, filing
(including, without limitation, the filing fees prescribed by the 1933 Act, the
1940 Act and the Rules and Regulations) and distribution of the Registration
Statement (including exhibits thereto), the Prospectus, each Prepricing
Prospectus and the 1940 Act Notification and all amendments or supplements to
any of them, (b) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, any
sales material and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares, (c) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and sale of such
Shares, (d) the registrations or qualifications of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification), (e) the fees and expenses of the
Fund's independent accountants, counsel for the Fund and of the transfer agent,
(f) the expenses of delivery to the Underwriters and dealers (including postage,
air freight and the cost of counting and packaging) of copies of the Prospectus,
the Prepricing Prospectus, any sales material and all amendments or supplements
to the Prospectus as may be requested for use in connection with the offering
and sale of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
Memoranda and all other company-authorized agreements or other documents printed
(or reproduced) and delivered in connection with the offering of the Shares, (h)
the filing fees and the fees and expenses of counsel for the
26
Underwriters in connection with any filings required to be made with the NASD
and incurred with respect to the review of the offering of the Shares by the
NASD, (i) the registration of the Shares under the 1934 Act and the listing of
the Shares on the NYSE, and (j) an amount equal to (A) $20,000 plus (B) $.0025
per Share for each Share in excess of 2,000,000 sold pursuant to this Agreement,
payable no later than 45 days from the date of this Agreement to the
Underwriters in partial reimbursement of their expenses (but not including
reimbursement for the cost of one tombstone advertisement in a newspaper that is
one-quarter of a newspaper page or less in size) in connection with the
offering. To the extent that the foregoing costs and expenses incidental to the
performance of the obligations of the Fund under this Agreement exceed $0.03 per
Share, the Investment Adviser will pay all such costs and expenses.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, (i) the Investment
Adviser will pay the costs and expenses of the Fund set forth above in this
Section 12 (a) through (i), (ii) reimbursements of Underwriter expenses in
connection with the offering shall be made in accordance with Section 5(k)
hereof and (iii) no party will be under any liability to any other person with
respect to the costs and expenses described in Section 5(k) hereof and this
Section 12 except as is described in (i) and (ii) above. (For the sake of
clarity, the foregoing sentence does not relieve any defaulting Underwriter from
liability to the Fund, the Investment Manager or any non-defaulting Underwriter
in respect of any such default to any Underwriter under this Agreement.)
13. Information Furnished by the Underwriters. The statements set forth in
the last sentence of the front cover page in the Prospectus, as well as, under
the caption "Underwriting" in the Prospectus, the names of the underwriters and
numbers of Shares listed opposite such names in the first paragraph, each
sentence of the third paragraph (other than the second sentence), the first
sentence of the eleventh paragraph, the first sentence of the twelfth paragraph,
the thirteenth paragraph, the seventeenth paragraph, the eighteenth paragraph
and the nineteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the Underwriters
through you as such information is referred to herein, expressly for use in the
Prospectus. The Underwriters severally confirm that these statements are correct
in all material respects.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Investment Adviser, c/o
PIMCO Advisors L.P., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxx Xxxxxxxx, Treasurer or (b) if to you, as Representatives of the
Underwriters, at the office of Citigroup Global Markets Inc. at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund and the Investment Adviser, and to the extent provided in
Section 8 hereof their trustees, directors, partners, members, managers,
shareholders and officers and the other controlling persons referred to in
Section 8 hereof and their respective successors and assigns to the extent
provided herein and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither the term "successor" or the term "successors
and assigns" as used in
27
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the trustees of the Fund in such capacity and
not individually and the obligations of this Agreement are not binding upon any
officer, any of the trustees or the shareholders individually but are binding
only upon the assets and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
28
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Investment Adviser and the several Underwriters.
Very truly yours,
PIMCO HIGH INCOME FUND
By: ___________________________
Title:
PIMCO ADVISORS FUND MANAGEMENT LLC
By: _____________________________
Title:
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
UBS WARBURG LLC
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
WACHOVIA SECURITIES, INC.
ADVEST, INC.
XXXXXXXXXX & CO. INC.
XXXXXX XXXXXXXXXX XXXXX LLC
MCDONALD INVESTMENTS INC., A KEYCORP COMPANY
QUICK & XXXXXX, INC. A FLEETBOSTON FINANCIAL COMPANY
RBC XXXX XXXXXXXX INC.
WEDBUSH XXXXXX SECURITIES INC.
XXXXX FARGO SECURITIES, LLC
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: CITIGROUP GLOBAL MARKETS INC.
By: ___________________________________
Title: Director
SCHEDULE I
Number of
Name of Underwriter Common Shares
------------------- -------------
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
Total Underwriters (__) ___________
SCHEDULE II
Certified Copy of the Fund's Declaration of Trust
Massachusetts Good Standing Certificate of the Fund
Massachusetts CSC Bring Down Confirmation of the Fund
New York Certificate of Filing of the Fund and Filing Receipt
LEXIS search on closing date showing "active" status of the Fund in New York
California Good Standing Certificate of the Fund
California Xxxxxxx Xxxxxx & Associates Inc. Bring Down Confirmation of the
Fund
Secretary's Certificate of the Fund
Annex A Amended and Restated Declaration of Trust of the Fund
Annex B By-Laws of the Fund
Annex C Resolutions adopted by the Board of Trustees of the Fund
Annex D The Underwriting Agreement
Annex E The Investment Management Agreement
Annex F The Portfolio Management Agreement
Annex G The Custodian Agreement
Annex H The Transfer Agency Services Agreement
Annex I The Subscription Agreement
Annex J The Dividend Reinvestment Plan
Annex K Specimen of the certificates representing the Shares
Annex L Material written communications relating to the Fund's
Registration Statement and Prospectus (comment letter and
response, acceleration requests, effectiveness order, etc.)
Annex M Certificate of the Secretary of State of The Commonwealth of
Massachusetts certifying as to the good standing of the Fund
Certificate of Incumbency of the Fund
Certified Copy of the Certificate of Formation of the Investment Adviser
Delaware Good Standing Certificate of the Investment Adviser
Delaware Bring Down Good Standing Certificate of the Investment Adviser
New York Good Standing Certificate of the Investment Adviser
New York CSC Bring Down Confirmation of the Investment Adviser
Citigroup Global Markets Inc., et al. -3- ________, 2003
California Good Standing Certificate of the Investment Adviser
California Xxxxxxx Xxxxxx & Associates Inc. Bring Down Confirmation of the
Investment Adviser
Connecticut Good Standing Certificate of the Investment Adviser
Connecticut CSC Bring Down Confirmation of the Investment Adviser
Texas Good Standing Certificate of the Investment Adviser
Texas CSC Bring Down Confirmation of the Investment Adviser
Washington Good Standing Certificate of the Investment Adviser
Washington CSC Bring Down Confirmation of the Investment Adviser
Secretary's Certificate of the Investment Adviser
Annex A Certificate of Formation of the Investment Adviser
Annex B Limited Liability Company Agreement of the Investment
Adviser
Annex C Certificate of the Secretary of State of Delaware certifying as to
the good standing of the Investment Adviser
Annex D Fee Waiver Agreements between (i) the Fund and Investment
Adviser and (ii) the Investment Adviser and Subadviser
Certificate of Incumbency of the Investment Adviser
Certified Copy of the Certificate of Formation of the Subadviser
Delaware Good Standing Certificate of the Subadviser
Delaware Bring Down Good Standing Certificate of the Subadviser
California Good Standing Certificate of the Subadviser
California Xxxxxxx Xxxxxx & Associates Inc. Bring Down Confirmation of the
Subadviser
New York Good Standing Certificate of the Subadviser
New York CSC Bring Down Confirmation of the Subadviser
Secretary's Certificate of the Subadviser
Annex A Certificate of Formation of the Subadviser
Annex B Limited Liability Company Agreement of the Subadviser
Annex C Certificate of the Secretary of State of the State of Delaware
certifying as to the good standing of the Investment Adviser
Citigroup Global Markets Inc., et al. -4- _________, 2003
Certificate of Incumbency of the Subadviser
Certification Letter of the Subadviser
Certificate of PFPC Inc. (Transfer Agent)
Receipt of Fund
Citigroup Global Markets Inc., et al. -5- _________, 2003
Exhibit A1
_______, 2003
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to PIMCO High Income Fund (the "Fund") in
connection with the proposed issuance of ________ common shares of beneficial
interest, with a par value of $0.00001 per share (the "Shares"). This opinion is
furnished to you pursuant to Section 9(b) of the Underwriting Agreement dated as
of ______, 2003 (the "Underwriting Agreement") among the Fund, PIMCO Advisors
Fund Management LLC (the "Investment Manager") and Citigroup Global Markets Inc.
and ________, as representatives of the underwriters listed on Schedule I
thereto (the "Underwriters"). Capitalized terms used in this opinion, unless
otherwise defined, have the meanings specified in the Underwriting Agreement.
Citigroup Global Markets Inc., et al. -6- _________, 2003
We have examined signed copies of the registration statement of the
Fund on Form N-2 (File No. 333-103389) under the Securities Act of 1933, as
amended (the "Securities Act"), and under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), including all exhibits thereto, as filed
with the Securities and Exchange Commission (the "Commission") on February 21,
2003 (the "Original Registration Statement"), Pre-Effective Amendment No. 1 to
the Original Registration Statement, including all exhibits thereto, as filed
with the Commission on ________, 2003 ("Pre-Effective Amendment No. 1"), and
Pre-Effective Amendment No. 2 to the Original Registration Statement, including
all exhibits thereto, as filed with the Commission on _______, 2003
("Pre-Effective Amendment No. 2" and, together with the Original Registration
Statement and Pre-Effective Amendment No. 1, the "Registration Statement"); the
Fund's Notification of Registration on Form N-8A (File No. 811-21311) under the
Investment Company Act, as filed with the Commission on February 21, 2003 (the
"Notification of Registration"); the Fund's Registration Statement on Form 8-A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
filed with the Commission on ______, 2003 (the "Exchange Act Registration
Statement"); the Fund's Agreement and Declaration of Trust, as amended to the
date hereof (the "Declaration of Trust"), on file in the offices of the
Secretary of State of The Commonwealth of Massachusetts and the Clerk of the
City of Boston; the By-laws of the Fund, as amended to the date hereof (the
"By-laws"); a copy of the Prospectus dated ________, 2003, relating to the
Shares and the Statement of Additional Information of the Fund dated _______,
2003, each as filed with the Commission pursuant to Rule 497 under the
Securities Act on _______, 2003 (together, the "Prospectus"); the Investment
Management Agreement dated as of ______, 2003, between the Fund and the
Citigroup Global Markets Inc., et al. -7- _________, 2003
Investment Manager (the "Investment Management Agreement"); the Portfolio
Management Agreement dated as of _______, 2003, between Pacific Investment
Management Company LLC (the "Portfolio Manager") and the Investment Manager (the
"Portfolio Management Agreement"), as agreed to and accepted by the Fund; the
Custodian Agreement dated as of ______, 2003, between the Fund and State Street
Bank and Trust Company (the "Custodian Agreement"); and the Transfer Agency
Services Agreement dated as of ______, 2003, between the Fund and PFPC Inc. (the
"Transfer Agency Agreement," and, together with the Custodian Agreement, the
"Fund Agreements"); the Terms and Conditions of the Fund's Dividend Reinvestment
Plan (the "Dividend Reinvestment Plan"); and the Underwriting Agreement.
Additionally, we have relied solely upon the oral representation of _______ of
the Commission staff to the effect that the Exchange Act Registration Statement
and the Registration Statement became effective as of ___ p.m. on _____, 2003; a
letter dated ______, 2003, from Xxxxxxxxx X. Xxxxxx, Group Executive Vice
President of the New York Stock Exchange, authorizing the Shares for listing on
such Exchange; and the oral representation by a member of the Commission staff
on the date hereof that as of ___ a.m., no stop order suspending the
effectiveness of the Registration Statement had been issued and no proceeding
for any such purpose was pending or threatened.
We have also examined and relied upon the original or copies of
written consents of shareholders and the Board of Trustees of the Fund and
copies of resolutions of the Board of Trustees of the Fund certified by the
Secretary of the Fund, the documents delivered to the Underwriters by the Fund
and the Investment Manager dated as of the date hereof pursuant to the
Underwriting Agreement and such other documents, including certificates of
officers of the
Citigroup Global Markets Inc., et al. -8- _________, 2003
Fund, as we have deemed necessary for purposes of rendering our opinions below.
For purposes of paragraph 2 below, we have relied solely on (1) the certificate
of recent date of the Secretary of State of the State of California as to the
entitlement of the Fund to transact intrastate business in the State of
California, (2) a Certificate of the Special Deputy Secretary of State of the
State of New York dated _______, 2003, certifying copies of (a) a Certificate of
Designation by the Fund dated _______, 2003 and (b) a Statement under Section 18
of the New York General Associations Law, (3) a Filing Receipt of the Department
of State of the State of New York dated _______, 2003 relating to the Fund and
(4) a Certificate dated _______, 2003 of the Special Deputy Secretary of State
of the State of New York certifying that the Fund filed a Certificate of
Designation in the Department of State of the State of New York on _______,
2003. We have assumed the genuineness of the signatures on all documents
examined by us, the authenticity of all documents submitted to us as originals
and the conformity to the corresponding originals of all documents submitted to
us as copies. For purposes of our opinions regarding the effectiveness of the
Registration Statement and the Exchange Act Registration Statement, we are
relying solely on the oral representations of the Commission staff.
We express no opinion as to the laws of any jurisdiction other than
The Commonwealth of Massachusetts and the United States of America. We call your
attention to the fact that the Underwriting Agreement provides that it is to be
governed by and construed in accordance with the laws of the State of New York
and the Transfer Agency Agreement provides that it is to be governed by and
construed in accordance with the laws of the State of Delaware, and to the fact
that the Investment Management Agreement does not provide that it is to be
governed by the laws of any particular jurisdiction. In rendering the opinion as
to enforceability
Citigroup Global Markets Inc., et al. -9- _________, 2003
expressed in paragraph 5 below, we have limited the scope of our opinion to the
conclusions that would be reached by a Massachusetts court that had determined
that each of the Fund Agreements and the Investment Management Agreement would
be governed by, and construed in accordance with, the internal laws of The
Commonwealth of Massachusetts. Further, we express no opinion as to the state
securities or Blue Sky laws of any jurisdiction, including The Commonwealth of
Massachusetts.
For purposes of our opinion set forth in paragraph 2 below with
respect to the power and authority of the Fund to own, lease and operate its
properties and conduct its business, we have relied upon certificates of
officers of the Fund as to the states in which the Fund leases or owns real
property or in which it conducts material operations.
Insofar as this opinion relates to factual matters, we have made
inquiries to officers of the Fund, the Investment Manager and the Portfolio
Manager to the extent we believe reasonable with respect to such matters and
have relied inter alia upon representations made by the Fund and the Investment
Manager in the Underwriting Agreement, representations made by the Portfolio
Manager to the Investment Manager and representations made to us by one or more
officers of the Fund, the Investment Manager or the Portfolio Manager. We have
not independently verified the accuracy of such representations. Where our
opinion relates to our "knowledge," that term means the conscious awareness of
facts or other information by any lawyer in our firm giving substantive
attention to the representation of the Fund with respect to the transactions
contemplated by the Underwriting Agreement, and does not require or imply (i)
any examination of this firm's, any such lawyer's or any other person's or
entity's files, or (ii) that any inquiry was made of any lawyer (other than the
lawyers described above). In respect of
Citigroup Global Markets Inc., et al. -10- _________, 2003
our opinions set forth in paragraphs 7, 9 and 11 below, we have not searched the
dockets of any court, administrative body or other filing office in any
jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that:
The Registration Statement and all post-effective amendments on or before
the Closing Date, if any, are effective under the Securities Act; the filing of
the Prospectus pursuant to Rule 497 under the Securities Act has been made in
the manner and within the time period required by Rule 497; and based upon oral
inquiries to the Commission staff on the date hereof, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for any such purpose is pending or threatened by the Commission.
The Fund has been duly organized and is validly existing and in good
standing as an unincorporated voluntary association under and by virtue of the
laws of The Commonwealth of Massachusetts and has full power and authority to
own or lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus. The Certificate of Designation
relating to the Fund's conduct of business in the State of New York is on file
with the Department of State of the State of New York, and the Fund is entitled
to transact intrastate business in the State of California.
The Fund's authorized capitalization is as set forth in the Registration
Statement and the Prospectus. The Fund has an indefinite number of authorized
common shares of beneficial interest, par value $0.00001 per share. The Shares
conform in all material respects as to legal matters to the description of them
under each section entitled "Description of Shares" in the Prospectus. All
outstanding common shares of beneficial interest of the Fund have been duly
authorized and are validly issued, fully paid and, subject to the penultimate
paragraph of this opinion letter, non-assessable. The Shares have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms of the Underwriting Agreement, will be
validly issued, fully paid and, subject to the penultimate paragraph of this
opinion letter, non-assessable. Except as contemplated by the Underwriting
Agreement, no person is entitled to any preemptive or other similar rights with
respect to the Shares.
The Fund was deemed to be registered under Section 8(a) of the Investment
Company Act upon receipt by the Commission of the Notification of Registration.
To our knowledge, the Commission has not issued to the Fund notice of any
hearing or other proceeding to consider suspension or revocation of any such
registration statement. All required action has been taken by the Fund under the
Securities Act, the Investment Company Act and the rules and regulations
thereunder in connection with the issuance and sale of the Shares to make the
public offering and consummate the sale of the Shares pursuant to the
Underwriting Agreement.
Citigroup Global Markets Inc., et al. -11- _________, 2003
The Fund has full power and authority to enter into each of the Fund
Agreements and to perform all of the terms and provisions thereof to be carried
out by it. Each Fund Agreement has been duly and validly authorized, executed
and delivered by the Fund. Each Fund Agreement complies in all material respects
with all applicable provisions of the Investment Company Act and the Investment
Advisers Act of 1940, as amended, as the case may be, and the rules and
regulations thereunder. Assuming due authorization, execution and delivery by
the other parties thereto, each Fund Agreement constitutes the legal, valid and
binding obligation of the Fund enforceable in accordance with its terms, subject
as to enforcement to bankruptcy, insolvency, moratorium, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
The Fund has full power and authority to enter into each of the Investment
Management Agreement and the Underwriting Agreement and to perform all of the
terms and provisions thereof to be carried out by it. The Investment Management
Agreement and the Underwriting Agreement have been duly and validly authorized,
executed and delivered by the Fund.
None of (a) the execution and delivery by the Fund of the Investment
Management Agreement, the Underwriting Agreement or any of the Fund Agreements,
(b) the issue and sale by the Fund of the Shares as contemplated by the
Underwriting Agreement and (c) the performance by the Fund of its obligations
under the Investment Management Agreement, the Underwriting Agreement, the
Dividend Reinvestment Plan or any of the Fund Agreements or consummation by the
Fund of the other transactions contemplated by the Investment Management
Agreement, the Underwriting Agreement or any of the Fund Agreements conflicts or
will conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws or, to our knowledge, any agreement or instrument to which
the Fund is a party or by which the Fund is bound, or violates or will violate
any federal or Massachusetts statute, law or regulation or any judgment,
injunction, order or decree of any federal or Massachusetts governmental agency
or body that is applicable to the Fund and that is known to us, which violation
would have a material adverse effect on the condition or business of the Fund.
To our knowledge, the Fund is not currently in breach of, or in default
under, any material written agreement or instrument to which it is a party or by
which it or its property is bound or affected.
No consent, approval, authorization or order of or registration with any
court or governmental agency or body or securities exchange or securities
association is required by the Fund for the consummation by the Fund of the
transactions contemplated in the Investment Management Agreement, the Dividend
Reinvestment Plan, the Underwriting Agreement and the Fund Agreements, except
such as (a) have been obtained under the
Citigroup Global Markets Inc., et al. -12- _________, 2003
Securities Act, the Investment Company Act or the Exchange Act and (b) may be
required by the New York Stock Exchange or the National Association of
Securities Dealers, Inc. or under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement.
To our knowledge, based upon a letter dated _______ 2003, from Xxxxxxxxx X.
Xxxxxx, Group Executive Vice President of the New York Stock Exchange,
authorizing the Shares for listing on such Exchange, the Shares have been
authorized for listing on the New York Stock Exchange, subject to official
notice of issuance, and to our knowledge after due inquiry, including oral
inquiries of the Commission staff on _______, 2003, the Exchange Act
Registration Statement has become effective.
To our knowledge, there are no legal or governmental proceedings pending or
threatened against the Fund, or to which the Fund or any of its properties is
subject, that are required to be described in the Registration Statement or the
Prospectus but are not described therein as required.
To our knowledge, there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which have not been so described or filed as an exhibit or
incorporated therein by reference.
Each of the sections in the Prospectus entitled "Tax Matters," to the
extent that it states matters of United States law or legal conclusions with
respect thereto, presents a fair summary of the principal federal income tax
rules currently in effect applicable to the Fund and to the purchase, ownership
and disposition of the Shares.
The Registration Statement (except for the financial statements and
schedules, the notes thereto and any schedules and other financial data
contained or incorporated by reference therein or omitted therefrom, as to which
we express no opinion), at the effective time set forth above, and the
Prospectus (except as aforesaid), as of the date thereof, complied as to form in
all material respects with the applicable requirements of the Securities Act and
the Investment Company Act and the rules and regulations thereunder.
We have not independently verified the accuracy, completeness or
fairness of the statements made or the information contained in the Registration
Statement or the Prospectus and, except in the respects and to the extent set
forth in paragraphs 3, 13 and 14 above, we are not passing upon and do not
assume any responsibility therefor. In the course of the preparation by the Fund
of the Registration Statement and the Prospectus, we have participated in
discussions
Citigroup Global Markets Inc., et al. -13- _________, 2003
with your representatives and employees and officers of the Fund, the Investment
Manager and the Portfolio Manager and in discussions with the Fund's independent
accountants, in which the business and the affairs of the Fund, the Investment
Manager and the Portfolio Manager and the contents of the Registration Statement
and the Prospectus were discussed. There is no assurance that all material facts
as to the Fund, the Investment Manager, the Portfolio Manager and their affairs
were disclosed to us or that our familiarity with the Fund and the Investment
Manager or any familiarity with the Portfolio Manager is such that we would have
necessarily recognized the materiality of such facts as were disclosed to us,
and we have to a large extent relied upon statements of representatives of the
Fund, the Investment Manager and the Portfolio Manager as to the materiality of
the facts disclosed to us. On the basis of information that we have gained in
the course of our representation of the Fund in connection with its preparation
of the Registration Statement and the Prospectus and our participation in the
discussions referred to above, no facts have come to our attention that would
lead us to believe that, as of the effective date of the Registration Statement,
the Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that as of the date of
the Prospectus and the date hereof the Prospectus contained an untrue statement
of material fact or omitted to state a material fact necessary in order to make
the statements therein, in light, in each case, of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and schedules, the notes thereto and any schedules and other
financial data contained or incorporated by reference therein or omitted
therefrom, as to which we express no opinion).
Citigroup Global Markets Inc., et al. -14- _________, 2003
Under Massachusetts law, shareholders could, under certain
circumstances, be held personally liable for the obligations of the Fund.
However, the Fund's Declaration of Trust disclaims shareholder liability for
acts or obligations of the Fund and requires that notice of such disclaimer be
given in each agreement, obligation, and instrument entered into or executed by
the Fund or the Trustees. The Declaration of Trust provides for indemnification
out of the property of the Fund for all loss and expense of any shareholder held
personally liable solely by reason of being or having been a shareholder of the
Fund. Thus, the risk of a shareholder's incurring financial loss on account of
being a shareholder is limited to circumstances in which the Fund itself would
be unable to meet its obligations.
This letter and the opinions expressed herein are furnished by us to
you and are solely for benefit of the Underwriters, except that Xxxxxxx Xxxxxxx
& Xxxxxxxx may rely on this letter as to all matters governed by the laws of The
Commonwealth of Massachusetts in delivering its opinion to you on the date
hereof.
Very truly yours,
Ropes & Xxxx
Exhibit A2
________, 2003
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to PIMCO High Income Fund (the "Fund") in
connection with the proposed issuance of _______ common shares of beneficial
interest, with a par value of $0.00001 per share (the "Shares"). As an
accommodation to the Fund, we are also rendering this opinion on behalf of PIMCO
Advisors Fund Management LLC (the "Investment Manager") solely with respect to
the regulatory matters referred to below. This opinion is furnished to you
pursuant to Section 9(b) of the Underwriting Agreement dated as of _______, 2003
(the "Underwriting Agreement") among the Fund, the Investment Manager and
Citigroup Global Markets Inc. and _______ as representatives of the underwriters
listed on Schedule I thereto (the "Underwriters"). Capitalized terms used in
this opinion, unless otherwise defined, have the meanings specified in our
opinion of even date rendered on behalf of the Fund (the "Fund Opinion").
Citigroup Global Markets Inc. et al. -2- _________, 2003
Solely for purposes of this opinion, we have assumed that each of the
Investment Management Agreement and the Portfolio Management Agreement has been
duly authorized, executed and delivered and constitutes a legal, valid and
binding obligation of the parties thereto in accordance with its respective
terms, and that the descriptions of the Investment Management Agreement and the
Portfolio Management Agreement in the Registration Statement are accurate and
complete in all respects. We have also, with your permission and without
independent investigation of the matters set forth therein, relied on the
opinions of even date herewith of Xxxxx Xxxxxxx, Esq., General Counsel of the
Investment Manager.
We express no opinion as to the laws of any jurisdiction other than the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. Assuming the Investment Manager is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and is not prohibited by the Advisers Act or the Investment Company Act
of 1940, as amended (the "Investment Company Act"), from acting as investment
adviser for the Fund as contemplated by the Investment Management Agreement, the
Registration Statement and the Prospectus, neither the execution and delivery of
the Underwriting Agreement, the Investment Management Agreement or the Portfolio
Management Agreement by the Investment Manager, nor the consummation by the
Investment Manager of the transactions contemplated thereby, nor compliance by
the Investment Manager with any of the terms and provisions thereof will violate
the provisions of the Investment Company Act, the Advisers Act, or the rules and
regulations thereunder; provided, however, that the foregoing does not represent
an opinion as to (a) the reasonableness of the fees to be paid to the Investment
Manager under the Investment Management Agreement or (b) the compliance by the
Investment Manager with its indemnification and contribution obligations set
forth in the Underwriting Agreement.
2. Assuming the Portfolio Manager is duly registered as an investment
adviser under the Advisers Act, and is not prohibited by the Advisers Act or the
Investment Company Act from acting as portfolio manager for the Fund as
contemplated by the Portfolio Management Agreement, the Registration Statement
and the Prospectus, neither the execution and delivery of the Portfolio
Management Agreement by the Portfolio Manager, nor the consummation by the
Portfolio Manager of the transactions contemplated thereby, nor compliance by
the Portfolio Manager with any of the terms and provisions thereof will violate
the provisions of the Investment Company Act, the Advisers Act or the rules and
regulations thereunder; provided, however, that the foregoing does not represent
an opinion as to the reasonableness of the fees to be paid to the Portfolio
Manager under the Portfolio Management Agreement.
Citigroup Global Markets Inc. et al. -3- _________, 2003
This letter and the opinions expressed herein are furnished by us to you
and are solely for benefit of the Underwriters.
Very truly yours,
Ropes & Xxxx
Exhibit B
PIMCO ADVISORS FUND MANAGEMENT LLC
000 Xxx Xxxxxxxx
Xxxxxxx Xxxxx, XX 00000
______, 2003
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: PIMCO Advisors Fund Management LLC
Ladies and Gentlemen:
I am the General Counsel of PIMCO Advisors Fund Management LLC, a
Delaware limited liability company ("PIMCO Advisors"), and have counseled PIMCO
Advisors in such capacity in connection with the sale to you by PIMCO High
Income Fund, a voluntary association with transferable shares organized and
existing under and by virtue of the laws of The Commonwealth of Massachusetts
(commonly referred to as a Massachusetts business trust) (the "Fund"), of an
aggregate of _______ common shares of beneficial interest, par value of $0.00001
_______, 2003
Page 2
per share, of the Fund, pursuant to a registration statement on Form N-2 under
the Securities Act of 1933, as amended (the "Act") and the Investment Company
Act of 1940, as amended (the "Investment Company Act"), filed with the
Securities and Exchange Commission (the "Commission") on February 21, 2003 (Act
File No. 333-103389, and Investment Company Act File No. 811-21311), as amended
by Pre-Effective Amendment No. 1 filed with the Commission on _______, 2003, and
Pre-Effective Amendment No. 2 filed with the Commission on _______, 2003 (such
registration statements collectively referred to herein as the "Registration
Statement"), and an underwriting agreement dated _______, 2003 by and among you,
the Fund and PIMCO Advisors (the "Underwriting Agreement").
This opinion is rendered to you pursuant to Section 9(c) of the
Underwriting Agreement. Capitalized terms used herein without definition have
the meanings assigned to them in the Underwriting Agreement.
As such counsel, I have examined such matters of fact and questions of
law as I have considered appropriate for purposes of rendering the opinions
expressed below, except where a statement is qualified as to knowledge or
awareness, in which case I have made no or limited inquiry as specified below. I
have examined, among other things, the following:
(a) the Underwriting Agreement;
(b) that certain Investment Management Agreement by and between the
Fund and PIMCO Advisors, dated as of _______, 2003; and
(c) that certain Portfolio Management Agreement by and between
Pacific Investment Management Company LLC and PIMCO Advisors, as
accepted and agreed to by the Fund, dated as of _______, 2003.
The documents described in subsections (a)-(c) above are referred to
herein collectively as the "Transaction Documents."
In my examination, I have assumed the genuineness of all signatures
(other than those of officers of PIMCO Advisors on the Transaction Documents),
the authenticity of all documents submitted to me as originals, and the
conformity to authentic original documents of all documents submitted to me as
copies.
I have been furnished with, and with your consent have relied upon,
certificates of officers of PIMCO Advisors with respect to certain factual
matters. In addition, I have obtained and relied upon such certificates and
assurances from public officials as I have deemed necessary.
I am opining herein as to the effect of the federal laws of the United
States, the internal laws of the State of New York and the internal laws of the
State of Delaware, and I
_______, 2003
Page 3
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or country or as to any matters
of municipal law or the laws of any other local agencies within any state or
country. My opinions set forth in paragraph 4 below are based upon my
consideration of only those statutes, rules and regulations which, in my
experience, are normally applicable to transactions similar to those
contemplated by the Transaction Documents, generally.
Whenever a statement herein is qualified by "to my knowledge" or a
similar phrase, it is intended to indicate that I do not have current actual
knowledge of the inaccuracy of such statement. However, except as otherwise
expressly indicated, I have not undertaken any independent investigation to
determine the accuracy of any such statement, and no inference that I have any
knowledge of any matters pertaining to such statement should be drawn from my
position as General Counsel of PIMCO Advisors.
Subject to the foregoing and the other matters set forth herein, it is
my opinion that, as of the date hereof:
1. PIMCO Advisors is a limited liability company and is validly
existing and in good standing under the Delaware Limited Liability Company Act
(6 Del. C (S) 18-101, et seq.) with all necessary limited liability company
power and authority to enter into and deliver the Transaction Documents and
perform its obligations thereunder and to carry on its business as it is now
being conducted and as described in the Registration Statement. Based solely on
certificates from public officials, I confirm that PIMCO Advisors is qualified
to do business in the following States: California, New York, Connecticut, Texas
and Washington, such States being those in which its ownership or leasing of
property or its conducting of business may require such qualification and where
failure to so qualify would have a material adverse effect on the ability of
PIMCO Advisors to perform its obligations under the Investment Management
Agreement and the Portfolio Management Agreement.
2. The execution, delivery and performance of the Transaction
Documents by PIMCO Advisors have been duly authorized by all necessary limited
liability company action of PIMCO Advisors and no other actions on the part of
PIMCO Advisors or its unitholders or any subsidiary of PIMCO Advisors or its
unitholders is necessary to authorize and consummate the transactions
contemplated thereby, and the Transaction Documents have been duly executed and
delivered by PIMCO Advisors.
3. Each of the Investment Management Agreement and the Portfolio
Management Agreement constitutes a legally valid and binding agreement of PIMCO
Advisors, enforceable against PIMCO Advisors in accordance with its terms.
4. Neither the execution and delivery of the Transaction Documents
by PIMCO Advisors, nor the consummation by PIMCO Advisors of transactions
contemplated thereby, nor compliance by PIMCO Advisors with any of the terms and
provisions thereof will:
_______, 2003
Page 4
(i) violate any provision of the Limited Liability
Company Agreement of PIMCO Advisors, effective __________, which is
still in full force and effect and which has not been amended or
supplemented through the date hereof,
(ii) violate any federal, Delaware or New York
statute, rule or regulation applicable to PIMCO Advisors (other than
federal and state securities or blue sky laws, the Investment Company
Act and the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), as to which I express no opinion),
(iii) violate any agreement to which PIMCO Advisors
is a party or by which it is bound and which is material to PIMCO
Advisors' businesses taken as a whole (the "Material Agreements"),
(iv) violate any order, writ, injunction or decree,
known to me and applicable to PIMCO Advisors, or
(v) to the best of my knowledge, require any
consents, approvals, authorizations, registrations, declarations or
filings by PIMCO Advisors under any federal or Delaware statute, rule
or regulation applicable to PIMCO Advisors, except as have been
obtained under the Act, the Investment Company Act or the Advisers Act
and the rules and regulations thereunder.
No opinion is expressed in this paragraph 4 as to the
application of Section 548 of the federal Bankruptcy Code and comparable
provisions of state or foreign law or of any antifraud laws, antitrust or trade
regulation laws. No opinion is expressed in this paragraph 4 with respect to the
operating licenses necessary for PIMCO Advisors' businesses.
5. PIMCO Advisors is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act or the rules and regulations thereunder from acting as investment
adviser for the Fund as contemplated by the Investment Management Agreement, the
Registration Statement and the Prospectus.
6. The description of PIMCO Advisors and its business, and the
statements attributable to PIMCO Advisors, set forth in the Registration
Statement or the Prospectus under the headings "Prospectus Summary - Investment
Manager", "Management of the Fund" and "Investment Manager and Portfolio
Manager" do not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
7. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to my knowledge, threatened
against PIMCO Advisors of a nature
_______, 2003
Page 5
required to be disclosed in the Registration Statement or Prospectus or that
might reasonably result in any material adverse change in the ability of PIMCO
Advisors to fulfill its obligations under either the Investment Management
Agreement or the Portfolio Management Agreement.
The opinions expressed in paragraph 3 above are subject to the
following limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors generally;
(b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(c) the unenforceability under certain circumstances under law
or court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy; and
(d) the unenforceability of any provision requiring the
payment of attorney's fees, except to the extent that a court determines such
fees to be reasonable.
In rendering the opinions expressed in paragraph 4 insofar as
they require interpretation of the Material Agreements (i) I have assumed with
your permission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the internal laws of the State of New York
without giving effect to any choice of law provisions contained therein or any
choice of law principles which would result in application of the internal laws
of any other state and (ii) to the extent that any questions of legality or
legal construction have arisen in connection with my review, I have applied the
laws of the State of New York in resolving such questions. I advise you that
certain of the Material Agreements may be governed by other laws, that such laws
may vary substantially from the law assumed to govern for purposes of this
opinion, and that this opinion may not be relied upon as to whether or not a
breach or default would occur under the law actually governing such Material
Agreements.
To the extent that the obligations of PIMCO Advisors may be
dependent upon such matters, I assume for purposes of this opinion that: (i) all
parties to the Transaction Documents other than PIMCO Advisors are duly
incorporated or organized, validly existing and in good standing under the laws
of their respective jurisdictions of incorporation or organization; (ii) all
parties to the Transaction Documents other than PIMCO Advisors have the
requisite power and authority and, in the case of natural persons, legal
capacity to execute and deliver the Transaction Documents and to perform their
respective obligations under the Transaction Documents to which they are a
party; and (iii) the Transaction Documents to which such parties
_______, 2003
Page 6
other than PIMCO Advisors are a party have been duly authorized, executed and
delivered by such parties and, other than PIMCO Advisors, constitute their
legally valid and binding obligations, enforceable against them in accordance
with their terms. I express no opinion as to compliance by any parties to the
Transaction Documents with any state or federal laws or regulations applicable
to the subject transactions because of the nature of their business and I
express no opinion as to compliance by any parties to the Transaction Documents
with any foreign laws or regulations applicable to the transactions contemplated
by the Transaction Documents or which may affect the Transaction Documents'
enforceability.
_______, 2003
Page 7
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may not
be relied upon by you for any other purpose, or furnished to, quoted to or
relied upon by any other person, firm or corporation for any purpose, without my
prior written consent.
Very truly yours,
Exhibit C
PIMCO ADVISORS FUND MANAGEMENT LLC
000 Xxx Xxxxxxxx
Xxxxxxx Xxxxx, XX 00000
_______, 2003
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS Warburg LLC
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Wachovia Securities, Inc.
Advest, Inc.
Xxxxxxxxxx & Co. Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
XxXxxxxx Investments Inc., a KeyCorp Company
Quick & Xxxxxx, Inc. a FleetBoston Financial Company
RBC Xxxx Xxxxxxxx Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pacific Investment Management Company LLC
Ladies and Gentlemen:
I am the General Counsel of PIMCO Advisors Fund Management
LLC, a Delaware limited liability company ("PIMCO Advisors"), an affiliate of
Pacific Investment Management Company LLC, a Delaware limited liability company
("PIMCO"). In such capacity I am rendering this opinion on behalf of PIMCO in
connection with the sale to you by PIMCO High Income Fund, a voluntary
association with transferable shares organized and existing under and by virtue
of the laws of The Commonwealth of Massachusetts (commonly referred to as a
Massachusetts business trust) (the "Fund"), of an aggregate of _______ common
shares of beneficial interest, par value $0.00001 per share, of the Fund,
pursuant to a registration statement on Form N-2 under the Securities Act of
1933, as amended (the "Act") and the Investment Company Act of 1940, as amended
(the "Investment Company Act"), filed with the Securities and Exchange
Commission (the "Commission") on February 21, 2003 (Act File No. 333-103389, and
Investment Company Act File No. 811-21311), as amended by Pre-Effective
Amendment No. 1 filed with the Commission on _______, 2003, and Pre-Effective
Amendment No. 2 filed
_______, 2003
Page 2
with the Commission on _______, 2003 (such registration statements collectively
referred to herein as the "Registration Statement"), and an underwriting
agreement dated _______, 2003, by and among you, the Fund and PIMCO Advisors
(the "Underwriting Agreement").
This opinion is rendered to you pursuant to Section 9(d) of the
Underwriting Agreement. Capitalized terms used herein without definition have
the meanings assigned to them in the Underwriting Agreement.
As such counsel, I have examined such matters of fact and questions of law
as I have considered appropriate for purposes of rendering the opinions
expressed below, except where a statement is qualified as to knowledge or
awareness, in which case I have made no or limited inquiry as specified below. I
have examined, among other things, that certain Portfolio Management Agreement
by and between PIMCO and the PIMCO Advisors, as accepted and agreed to by the
Fund, dated as of _______, 2003 (the "Portfolio Management Agreement").
In my examination, I have assumed the genuineness of all signatures
(other than those of officers of PIMCO on the Portfolio Management Agreement),
the authenticity of all documents submitted to me as originals, and the
conformity to authentic original documents of all documents submitted to me as
copies.
I have been furnished with, and with your consent have relied upon,
certificates of officers of PIMCO with respect to certain factual matters. In
addition, I have obtained and relied upon such certificates and assurances from
public officials as I have deemed necessary.
I am opining herein as to the effect of the federal laws of the United
States, the internal laws of the State of New York and the internal laws of the
State of Delaware, and I express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or country
or as to any matters of municipal law or the laws of any other local agencies
within any state or country. My opinions set forth in paragraph 4 below are
based upon my consideration of only those statutes, rules and regulations which,
in my experience, are normally applicable to transactions similar to those
contemplated by the Portfolio Management Agreement, generally.
Whenever a statement herein is qualified by "to my knowledge" or a
similar phrase, it is intended to indicate that I do not have current actual
knowledge of the inaccuracy of such statement. However, except as otherwise
expressly indicated, I have not undertaken any independent investigation to
determine the accuracy of any such statement, and no inference that I have any
knowledge of any matters pertaining to such statement should be drawn from my
position as General Counsel of PIMCO Advisors.
Subject to the foregoing and the other matters set forth herein, it is
my opinion that, as of the date hereof:
1. PIMCO is a limited liability company and is validly existing and
in good standing under the Delaware Limited Liability Company Act (6 Del. C (S)
18-101, et seq.) with all necessary limited liability company power and
authority to enter into and deliver the Portfolio Management Agreement and
perform its obligations thereunder and to carry on its business as it is now
being conducted and as described in the Registration Statement. Based solely on
_______, 2003
Page 3
certificates from public officials, I confirm that PIMCO is qualified to do
business in the following States: California and New York, such States being
those in which its ownership or leasing of property or its conducting of
business may require such qualification and where failure to so qualify would
have a material adverse effect on the ability of PIMCO to perform its
obligations under the Portfolio Management Agreement.
2. The execution, delivery and performance of the Portfolio
Management Agreement by PIMCO have been duly authorized by all necessary limited
liability company action of PIMCO and no other actions on the part of PIMCO or
its unitholders or any subsidiary of PIMCO or its unitholders is necessary to
authorize and consummate the transactions contemplated thereby, and the
Portfolio Management Agreement has been duly executed and delivered by PIMCO.
3. The Portfolio Management Agreement constitutes a legally valid
and binding agreement of PIMCO, enforceable against PIMCO in accordance with its
terms.
4. Neither the execution and delivery of the Portfolio Management
Agreement by PIMCO, nor the consummation by PIMCO of transactions contemplated
thereby, nor compliance by PIMCO with any of the terms and provisions thereof
will:
(i) violate any provision of the limited liability company
agreement of PIMCO, effective May 5, 2000, which is still in full force and
effect and which has not been amended or supplemented through the date
hereof,
(ii) violate any federal, Delaware or New York statute, rule or
regulation applicable to PIMCO (other than federal and state securities or
blue sky laws, the Investment Company Act and the Investment Advisers Act
of 1940, as amended (the "Advisers Act"), as to which I express no
opinion),
(iii) violate any agreement to which PIMCO is a party or by which
it is bound and which is material to PIMCO's businesses taken as a whole
(the "Material Agreements"),
(iv) violate any order, writ, injunction or decree, known to me
and applicable to PIMCO, or
(v) to the best of my knowledge, require any consents,
approvals, authorizations, registrations, declarations or filings by PIMCO
under any federal or Delaware statute, rule or regulation applicable to
PIMCO, except as have been obtained under the Act, the Investment Company
Act or the Advisers Act and the rules and regulations thereunder.
No opinion is expressed in this paragraph 4 as to the application of
Section 548 of the federal Bankruptcy Code and comparable provisions of state or
foreign law or of any antifraud laws, antitrust or trade regulation laws. No
opinion is expressed in this paragraph 4 with respect to the operating licenses
necessary for PIMCO's businesses.
5. PIMCO is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the Investment Company
Act or the rules and
_______, 2003
Page 4
regulations thereunder from acting as investment sub-adviser for the Fund as
contemplated by the Portfolio Management Agreement, the Registration Statement
and the Prospectus.
6. The description of PIMCO and its business, and the statements
attributable to PIMCO, set forth in the Registration Statement and the
Prospectus under the headings "Prospectus Summary - Portfolio Manager",
"Management of the Fund" and "Investment Manager and Portfolio Manager" do not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to my knowledge, threatened
against PIMCO of a nature required to be disclosed in the Registration Statement
or Prospectus or that might reasonably result in any material adverse change in
the ability of PIMCO to fulfill its obligations under the Portfolio Management
Agreement.
The opinions expressed in paragraph 3 above are subject to the
following limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting the
rights or remedies of creditors generally;
(b) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the
court before which any proceeding therefor may be brought;
(c) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy; and
(d) the unenforceability of any provision requiring the payment of
attorney's fees, except to the extent that a court determines such fees to be
reasonable.
In rendering the opinions expressed in paragraph 4 insofar as they
require interpretation of the Material Agreements (i) I have assumed with your
permission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the internal laws of the State of New York
without giving effect to any choice of law provisions contained therein or any
choice of law principles which would result in application of the internal laws
of any other state and (ii) to the extent that any questions of legality or
legal construction have arisen in connection with my review, I have applied the
laws of the State of New York in resolving such questions. I advise you that
certain of the Material Agreements may be governed by other laws, that such laws
may vary substantially from the law assumed to govern for purposes of this
opinion, and that this opinion may not be relied upon as to whether or not a
breach or default would occur under the law actually governing such Material
Agreements.
_______, 2003
Page 5
To the extent that the obligations of PIMCO may be dependent upon such
matters, I assume for purposes of this opinion that: (i) all parties to the
Portfolio Management Agreement other than PIMCO are duly incorporated or
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or organization; (ii) all parties to
the Portfolio Management Agreement other than PIMCO have the requisite power and
authority and, in the case of natural persons, legal capacity to execute and
deliver the Portfolio Management Agreement and to perform their respective
obligations under the Portfolio Management Agreement; and (iii) the Portfolio
Management Agreement has been duly authorized, executed and delivered by such
parties other than PIMCO and, other than PIMCO, constitute their legally valid
and binding obligations, enforceable against them in accordance with their
terms. I express no opinion as to compliance by any parties to the Portfolio
Management Agreement with any state or federal laws or regulations applicable to
the subject transactions because of the nature of their business and I express
no opinion as to compliance by any parties to the Portfolio Management Agreement
with any foreign laws or regulations applicable to the transactions contemplated
by the Portfolio Management Agreement or which may affect the Portfolio
Management Agreement's enforceability.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without my prior written
consent.
Very truly yours,
