______________ Shares
NUVEEN OHIO DIVIDEND ADVANTAGE MUNICIPAL FUND 2
Common Stock
UNDERWRITING AGREEMENT
----------------------
[September ___, 2001]
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
UBS Warburg LLC
First Union Securities, Inc.
McDonald Investments Inc., a KeyCorp Company
Xxxxxxx Xxxxx & Associates, Inc.
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen Ohio Dividend Advantage Municipal Fund 2, a
Massachusetts business trust (the "Fund") and Nuveen Advisory Corp., a Delaware
corporation (the "Manager"), address you as Underwriters and as the
representatives (the "Representatives") of each of the other persons, firms and
corporations, if any, listed in Schedule I hereto (herein collectively called
"Underwriters"). The Fund proposes to issue and sell an aggregate of ________
shares (the "Firm Shares") of its common shares of beneficial interest, $.01 par
value per share (the "Common Shares"), to the several Underwriters. The Fund
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional _______ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements with
you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated August 2, 2001, an exchange traded fund custody agreement with The
Chase Manhattan Bank dated September 7, 2001 and a shareholder transfer agency
agreement with The Chase Manhattan Bank dated September 7, 2001 and such
agreements are herein referred to as the "Management Agreement", the "Custodian
Agreement" and the "Transfer Agency Agreement",
respectively. Collectively, the Management Agreement, the Custodian Agreement
and the Transfer Agency Agreement are herein referred to as the "Fund
Agreements". This Underwriting Agreement is herein referred to as the
"Agreement".
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1. Registration Statement and Prospectus. The Fund has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933,
as amended (the "1933 Act"), the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Rules and Regulations") and the 1940 Act (the "1940 Act Rules and
Regulations" and together with the 1933 Act Rules and Regulations, the "Rules
and Regulations") a registration statement on Form N-2 (File No. 333-66062)
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, prior to the execution of this Agreement and includes any
information deemed to be included by Rule 430A under the 1933 Act Rules and
Regulations. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to the registration statement will be filed
under the 1933 Act and must be declared effective before the offering of the
Shares may commence, the term "Registration Statement" as used in this Agreement
means the registration statement as amended by said post-effective amendment.
The term "Prospectus" as used in this Agreement means the prospectus (including
the statement of additional information) in the form included in the
Registration Statement or, if the prospectus (including the statement of
additional information) included in the Registration Statement omits information
in reliance on Rule 430A and such information is included in a prospectus
(including the statement of additional information) filed with the Commission
pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of additional
information) shall have been amended from time to time prior to the date of the
Prospectus, together with any other prospectus (including any other statement of
additional information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such
registration statement, each amendment to such registration statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell, Purchase and Compensate. The Fund hereby
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agrees, subject to all the terms and conditions set forth herein, to issue and
to sell to each Underwriter and, upon the
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basis of the representations, warranties and agreements of the Fund and the
Manager herein contained and subject to all of the other terms and conditions
set forth herein, each Underwriter agrees, severally and not jointly, to
purchase from the Fund at a purchase price per share of $14.325 per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Shares
increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set
forth herein, to issue and to sell to the Underwriters and, upon the basis of
the representations, warranties and agreements of the Fund and the Manager
herein contained and subject to all the terms and conditions set forth herein,
the Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of ________ Additional Shares. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, upon the basis of the representations, warranties and agreements of the
Fund and the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Fund and the Manager have been
------------------------
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
----------------------------------------
(a) Delivery to the Underwriters of and payment to the Fund for
the Firm Shares and compensation of the Underwriters with respect
thereto shall be made at the office of Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities
of the Depository Trust Company or another mutually agreeable
facility, at 9:00 A.M., New York City time, on [September ___, 2001]
(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 Xxxxxxx Xxxxx Barney Inc.
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at such time on such date (an "Option Closing Date"), which may be the
same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than two nor later than three business days
after the giving of the notice hereinafter referred to, as shall be
specified in a written notice from you on behalf of the Underwriters
to the Fund of the Underwriters' determination to purchase a number,
specified in said notice, of Additional Shares. The place of closing
for any Additional Shares and the Option Closing Date for such
Additional Shares may be varied by agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional
Shares shall be registered in such names and in such denominations as
you shall request prior to 1:00 P.M., New York City time, (i) in
respect of the Firm Shares, on the second business day preceding the
Closing Date and (ii) in respect of Additional Shares, on the day of
the giving of the written notice in respect of such Additional Shares.
Such certificates will be made available to you in New York City for
inspection and packaging not later than 9:00 A.M., New York City time,
on the business day next preceding the Closing Date or any Option
Closing Date, as the case may be. The certificates evidencing the Firm
Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as
the case may be, against payment of the purchase price therefor in
same-day funds to the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
--------------------------------------
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the 1933 Act before
the offering of the Firm Shares may commence, the Fund will use its
reasonable best efforts to cause the Registration Statement or such
post-effective amendment to become effective under the 1933 Act as
soon as possible. If the Registration Statement has become effective
and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A of the 1933 Act Rules and
Regulations, the Fund will file a prospectus including such
information pursuant to Rule 497(h) of the 1933 Act Rules and
Regulations, as promptly as practicable, but no later than the second
business day following the earlier of the date of the determination of
the offering price of the Shares or the date the Prospectus is first
used after the effective date of the Registration Statement. If the
Registration Statement has become effective and the Prospectus
contained therein does not so omit such information, the Fund will
file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than
the fifth business day following the date of the later of the
effective date of the Registration Statement or the commencement of
the public offering of the Shares after the effective date of the
Registration Statement. The Fund will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when the
Registration Statement or such post-effective amendment has become
effective, (ii) when the Prospectus has been timely filed pursuant to
Rule 497(c) or Rule 497(h) of the 1933 Act Rules and Regulations or
the certification permitted pursuant to Rule 497(j) of the 1933 Act
Rules and Regulations has been timely filed, whichever is applicable.
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(b) The Fund will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official suspending
the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to
Section 8(e) of the 1940 Act, of the suspension of qualification of
the Shares for offering or sale in any jurisdiction, or the initiation
or contemplated initiation of any proceeding for any such purposes,
(iii) of receipt by the Fund, the Manager, any affiliate of the Fund
or the Manager or any representative or attorney of the Fund or the
Manager of any other material communication from the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
relating to the Fund (if such communication relating to the Fund is
received by such person within three years after the date of this
Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing), this Agreement or any of the Fund Agreements and (iv)
within the period of time referred to in paragraph (f) below, of any
material, adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Fund or the Manager or of the happening of any event which
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any Prepricing Prospectus or any sales
material (as herein defined) (or any amendment or supplement to any of
the foregoing) untrue or which requires the making of any additions to
or changes in the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales materials (as herein defined) (or
any amendment or supplement to any of the foregoing) in order to state
a material fact required by the 1933 Act, the 1940 Act or the Rules
and Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as herein
defined) (or any amendment or supplement to any of the foregoing) to
comply with the 1933 Act, the 1940 Act, the Rules and Regulations or
any other law or order of any court or regulatory body. If at any time
the 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.
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(c) The Fund will furnish to you, without charge, three signed
copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except any
post- effective amendment required by Rule 8b-16 of the 1940 Act Rules
and Regulations which is filed with the Commission after the later of
(x) one year from the date of this Agreement and (y) the date on which
the distribution of the Shares is completed) and will also furnish to
you, without charge, such number of conformed copies of the
registration statement as originally filed and of each amendment
thereto (except any post-effective amendment required by Rule 8b-16 of
the 1940 Act Rules and Regulations which is filed with the Commission
after the later of (x) one year from the date of this Agreement and
(y) the date on which the distribution of the Shares is completed),
with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined)
(or any amendment or supplement to any of the foregoing) of which you
shall not previously have been advised or to which you shall
reasonably object within a reasonable time after being so advised or
(ii) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), without delivering a copy of such information, documents or
reports to you, as Representatives of the Underwriters, prior to or
concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Fund has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of any Prepricing
Prospectus. The Fund consents to the use, in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky laws of
the jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time, for such period as in
the opinion of counsel for the Underwriters a prospectus is required
by the 1933 Act to be delivered in connection with sales of Shares by
any Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus
(and of any amendments or supplements thereto) in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky laws of
the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering or sale of the Shares and for such period
of time thereafter as the Prospectus is required by law to be
delivered in connection with sales of Shares by any Underwriter or
dealer. If during such period of time any event shall occur that in
the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then
7
amended or supplemented) or should be set forth therein in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading or if it is necessary to supplement or
amend the Prospectus to comply with the 1933 Act, the 1940 Act, the
Rules and Regulations or any other law, rule or regulation, the Fund
will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate amendment or supplement
thereto and will expeditiously furnish to the Underwriters and
dealers, without charge, such number of copies thereof as they shall
reasonably request. In the event that the Prospectus is to be amended
or supplemented, the Fund, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by
the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as
you may designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the
Fund be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject
it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not
now so subject.
(h) The Fund will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 of the 1933 Act Rules and Regulations.
(i) The Fund will comply with the undertaking set forth in
paragraph 6 of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will
furnish to you (i) as soon as available, a copy of each report of the
Fund mailed to shareholders or filed with 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 Manager to comply with the terms or fulfill any of the
conditions of this Agreement, the Fund and the Manager, jointly and
severally, agree to reimburse the Representatives for all out-
of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and
the Manager shall in no event
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be liable for any internal cost of the Underwriters or any loss of
anticipated profits or speculative, consequential or similar damages
for such termination.
(l) The Fund will direct the investment of the net proceeds of
the offering of the Shares in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(m) The Fund will file the requisite copies of the Prospectus
with the Commission in a timely fashion pursuant to Rule 497(c) or
Rule 497(h) of the 1933 Act Rules and Regulations, whichever is
applicable or, if applicable, will file in a timely fashion the
certification permitted by Rule 497(j) of the 1933 Act Rules and
Regulations and will advise you of the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund in effect on the date hereof,
the Fund will not sell, contract to sell or otherwise dispose of, any
Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or grant any options or warrants to
purchase Common Shares, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc.
(o) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Manager has taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Shares.
(p) The Fund will use its reasonable best efforts to have the
Common Shares listed, subject to notice of issuance, on the American
Stock Exchange (the "AMEX") concurrently with the effectiveness of the
Registration Statement and to comply with the rules and regulations of
such exchange.
6. Representations and Warranties of the Fund and the Manager.
----------------------------------------------------------
The Fund and the Manager, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto or filed pursuant to Rule 497 of the 1933 Act
Rules and Regulations, complied when so filed in all material respects
with the provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations.
(b) The Registration Statement, in the form in which it
became or becomes effective and also in such form as it may be when
any post-effective amendment thereto shall become effective and the
Prospectus and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the 1933 Act Rules and Regulations and
the 1940 Act Notification when originally filed with the Commission
and any amendment or supplement thereto when filed with the Commission
complied or will comply in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations and did
not or will not at any such times contain an untrue
9
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under which
they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Fund in
writing by or on behalf of any Underwriter through you expressly for
use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described
in the Registration Statement, nonassessable and are free of any
preemptive or similar rights; the Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued,
fully paid and, except as described in the Registration Statement,
nonassessable and free of any preemptive or similar rights and the
capital stock of the Fund conforms to the description thereof in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them).
(d) The Fund has been duly formed and is validly existing in
good standing as a business trust under the laws of The Commonwealth
of Massachusetts, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does not have a material, adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Fund. The Fund has no
subsidiaries.
(e) There are no legal or governmental proceedings pending or,
to the knowledge of the Fund, threatened, against the Fund or to which
the Fund or any of its properties is 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 of its Declaration of Trust or
By- Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any material decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund or in breach or default in any material
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respect in the performance of any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or in any agreement, indenture, lease or other instrument to
which the Fund is a party or by which it or any of its properties may be
bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing with the Commission, the NASD, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or By-
Laws of the Fund or (B) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which the Fund is a party or by
which it or any of its properties may be bound or materially violates or
will materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Fund
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by the
Fund which are material to the Fund other than those in the ordinary course
of its business as described in the Prospectus (and any amendment or
supplement thereto) and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Fund on any class of its common
stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit the Statement of Assets and Liabilities included in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), are an independent public accounting firm as required by the 1933
Act, the 1940 Act and the Rules and Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they
11
apply; such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles consistently
applied throughout the periods involved except as disclosed therein; and
the other financial and statistical information and data included in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) are accurately derived from such financial statements and the
books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent 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
prospective 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 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 filed by Nuveen Investments with the NASD on August 20, 2001
and August 24, 2001.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to
12
such permits and no event has occurred which allows or, after notice or
lapse of time, would allow, revocation or termination thereof or results in
any other material impairment of the rights of the Fund under any such
permit, subject in each case to such qualification as may be set forth in
the Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles, to calculate net asset value, to maintain accountability for
assets and to maintain material compliance with the books and records
requirements under the 1940 Act and the 1940 Act Rules and Regulations;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded account for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(r) Except as stated in this Agreement and in the Prospectus (and
any amendment or supplement thereto), the Fund has not taken and will not
take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed in
all material respects with all applicable provisions of the 1940 Act and
the Rules and Regulations. The Fund has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement (or any amendment or
supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "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 Manager for use in connection
with the offering and sale of the Shares (collectively, "sales material")
complied and comply in all material respects with the applicable
13
requirements of the 1933 Act, the 1933 Act Rules and Regulations and the
rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were so filed. No sales material
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended.
7. Representations and Warranties of the Manager. The Manager represents
---------------------------------------------
and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing in
each jurisdiction or place where the nature of its properties or conduct of
its business requires such registration or qualification, except where the
failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act,
the Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under the Management Agreement for the Fund as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of, and
the performance by the
14
Manager of its obligations under, this Agreement and the Management
Agreement have been duly and validly authorized by the Manager and this
Agreement and the Management Agreement have been duly executed and
delivered by the Manager and constitute the valid and legally binding
agreements of the Manager, enforceable against the Manager in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement, the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the
Management Agreement.
(e) The description of the Manager and its business, and the
statements attributable to the Manager, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Manager, threatened against the Manager or to which
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
result in any material, adverse change in the condition (financial or
other), business, properties, net assets or results of operations of the
Manager or that reasonably should have a material, adverse effect on the
ability of the Manager to fulfill its obligations hereunder or under the
Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Manager, whether or not arising from the ordinary course
of business and (B) there have been no transactions entered into by the
Manager which are material to the Manager other than those in the ordinary
course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Manager has fulfilled and
15
performed all its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this
Agreement or the Management Agreement by the Manager, nor the consummation
by the Manager of the transactions contemplated hereby or thereby (A)
requires any consent, approval, authorization or other order of or
registration or filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official (except compliance with the securities or Blue Sky
laws of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the filing
requirements of the NASD Division of Corporate Finance) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the Certificate of Incorporation or By-Laws of the Manager
or (B) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or
other instrument to which the Manager is a party or by which it or any of
its properties may be bound or materially violates or will materially
violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Manager or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Manager
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Manager is subject.
(k) Except as stated in this Agreement and in the Prospectus (and
in any amendment or supplement thereto), the Manager has not taken and will
not take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute,
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Manager is not aware of any
such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Manager will install and maintain pre-
qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
--------------------------------
16
(a) The Fund and the Manager, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and
all losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Shares, if it is shown that a copy
of the Prospectus, as then amended or supplemented, which would have cured
any defect giving rise to such loss, claim, damage, liability or expense
was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered, at or prior to the
confirmation of the sale of such Shares to such person and such Prospectus,
amendments and supplements had been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit
proper delivery. The foregoing indemnity agreement shall be in addition to
any liability which the Fund or the Manager may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Manager, such Underwriter
or such controlling person shall promptly notify the Fund or the Manager
and the Fund or the Manager shall assume the defense thereof, including the
employment of counsel and the payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i) the
Fund or the Manager have agreed in writing to pay such fees and expenses,
(ii) the Fund and the Manager have failed within a reasonable time to
assume the defense and employ counsel or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Fund or the
Manager and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Manager by the same counsel would be inappropriate under
applicable standards of professional conduct
17
(whether or not such representation by the same counsel has been proposed)
due to actual or potential differing interests between them (in which case
the Fund and the Manager shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the Fund and the
Manager shall, in connection with any one such action, suit or proceeding
or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances be liable for the reasonable fees and expenses
of only one separate firm of attorneys (in addition to any local counsel if
there is any action, suit or proceeding in more than one jurisdiction) at
any time for all such Underwriters and controlling persons not having
actual or potential differing interests with you or among themselves, which
firm shall be designated in writing by Xxxxxxx Xxxxx Xxxxxx Inc. and that,
subject to the requirements of 1940 Act Release No. 11330, all such fees
and expenses shall be reimbursed promptly as they are incurred. The Fund
and the Manager shall not be liable for any settlement of any such action,
suit or proceeding effected without the written consent of the Fund or the
Manager, but if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Fund
and the Manager agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, liability, damage or expense by reason by
such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Manager, their trustees,
directors, any officers of the Fund who sign the Registration Statement and
any person who controls the Fund or the Manager within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same
extent as the foregoing indemnity from the Fund and the Manager to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement or the
Prospectus (or any amendment or supplement or to either of them). If any
action, suit or proceeding shall be brought against the Fund or the
Manager, any of their trustees, directors, any such officer or any such
controlling person, based on the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to the Fund by
paragraph (b) above (except that if the Fund or the Manager shall have
assumed the defense thereof such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense) and the Fund and the Manager, their trustees,
directors, any such officer and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims,
18
damages, liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and of the Underwriters on
the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits
received by the Fund and the Manager on the one hand (treated jointly for
this purpose as one person) and the Underwriters on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Fund as set forth in
the table on the cover page of the Prospectus bear to the total payments
received by the Underwriters with respect to the Firm Shares as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Fund and the Manager on the one hand (treated jointly for this purpose as
one person) and of the Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund and the Manager
on the one hand (treated jointly for this purpose as one person) or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(e) The Fund, the Manager and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as 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.
19
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from
claimants on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Fund and the
Manager set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Fund, the
Manager or their trustees, directors or officers or any person controlling
the Fund or the Manager, (ii) acceptance of any Shares and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Manager or their trustees, directors or
officers or any person controlling any Underwriter, the Fund or the Manager
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any amendment or supplement thereto), the Closing Date and, with respect
to any Additional Shares, any Option Closing Date; to the accuracy and
completeness of all statements made by the Fund, the Manager or any of their
officers in any certificate delivered to the Representatives or their counsel
pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Manager or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
20
(b) You shall have received on the Closing Date an opinion of Xxxx,
Xxxx & Xxxxx, special counsel for the Fund and Manager, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) The Fund is a business trust duly organized, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
(ii) The authorized and outstanding capital stock of the
Fund is as set forth in the Registration Statement and Prospectus (or
any amendment or supplement thereto through the date of the opinion);
and the description of the authorized capital stock of the Fund
contained in the Prospectus (or any amendment or supplement thereto
through the date of the opinion) under the caption "Description of
Shares" conforms in all material respects as to legal matters to the
terms thereof contained in the Fund's Declaration of Trust;
(iii) All the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have been duly
authorized and validly issued and are fully paid and nonassessable,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders of the
Fund may under certain circumstances be held personally liable for its
obligations;
(iv) The Shares have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid
and nonassessable not subject to any preemptive rights that entitle or
will entitle any person to acquire any Shares upon the issuance
thereof by the Fund, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
(v) The form of certificates for the Shares is in due and
proper form and complies with the requirements of all applicable laws
and the AMEX;
(vi) The Fund has the power and authority to enter into
this Agreement and the Fund Agreements and to issue, sell and deliver
the Shares to the Underwriters as provided herein and this Agreement
and each of the Fund Agreements have been duly authorized, executed
and delivered by the Fund and assuming due authorization, execution
and delivery by the other parties thereto,
21
constitute the valid, legal and binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
enforcement of rights to indemnity hereunder may be limited by Federal
or state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Manager, enforceable against the Manager in
accordance with its terms, except as enforcement of rights to
indemnity hereunder may be limited by Federal or state securities laws
or principles of public policy and subject to the qualification that
the enforceability of the Manager's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles, whether enforcement is
considered in a proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects
with all applicable provisions of the 1933 Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of
Trust or By-Laws or to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance of
any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness, except as may be
disclosed in the Prospectus (and any amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's
22
Dividend Reinvestment Plan violates the Declaration of Trust or By-
Laws of the Fund or any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties is bound that is an exhibit to the Registration Statement
or that is known to such counsel after reasonable inquiry or, to the
best of such counsel's knowledge after reasonable inquiry, will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Fund, nor, to the best
of such counsel's knowledge after reasonable inquiry, will any such
action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to the Fund
or any of its properties, except that, in the published opinion of the
Commission, the indemnification provisions in this Agreement and the
Fund Agreements, insofar as they relate to indemnification for
liabilities arising under the 1933 Act, are against public policy as
expressed in the 1933 Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497 of
the 1933 Act Rules and Regulations prior to the date of such opinion
have been made in accordance with Rule 497;
(xiii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, non-diversified management investment
company and all action has been taken by the Fund as required by the
1933 Act and the 1940 Act and the Rules and Regulations in connection
with the issuance and sale of the Shares to make the public offering
and consummate the sale of the Shares as contemplated by this
Agreement;
(xiv) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them
through the date of the opinion) under the caption "Tax Matters" have
been reviewed by such counsel and to the extent they describe or
summarize tax laws, doctrines or practices of the United States,
present a fair and accurate description or summary thereof as of the
date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement to either of them through
the date of the opinion), insofar as they are descriptions of
contracts, agreements or other legal documents or refer to statements
of law or legal conclusions, are accurate and present fairly the
information required to be shown;
23
(xvi) The Registration Statement and the Prospectus (and
any amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein as to which such
counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after
reasonable inquiry, (A) other than as described or contemplated in the
Prospectus (or any amendment or supplement thereto through the date of
the opinion), there are no actions, suits or other legal or
governmental proceedings pending or expressly threatened against the
Fund and (B) there are no material agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them through the date of the opinion) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xviii) To the best knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the NASD,
any state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-
regulatory or administrative agency or any official having
jurisdiction over the Fund; and
(xix) The Shares are duly authorized for listing, subject
to official notice of issuance, on the American Stock Exchange and the
Fund's registration statement on Form 8-A under the 1934 Act is
effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and nothing
has come to the attention of such counsel that has caused it to believe that the
Registration Statement, at the time the Registration Statement became effective
or the Prospectus, as of its date and as of the Closing Date, as the case may
be, or the Option Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that any amendment
or supplement to the Prospectus, as of the Closing Date or the Option Closing
Date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no view with respect to the financial statements
and the notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
24
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of the State of Ohio, The
Commonwealth of Massachusetts and the United States and may rely, as to matters
involving the application of laws of The Commonwealth of Massachusetts, to the
extent they deem proper and specified in such opinion, upon the opinion of
Xxxxxxx Xxxx LLP or other counsel of good standing whom they believe to be
reliable and who are satisfactory to the Representatives; provided that (X) such
reliance is expressly authorized by the opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is, in form and
substance, satisfactory to them and their counsel and (Y) Xxxx, Xxxx & Xxxxx
states in their opinion that they believe that they and the Underwriters are
justified in relying thereon.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxxxxx, Vice President, Assistant Secretary and General Counsel
for the Manager, dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, to the effect that:
(i) The Manager is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the
failure so to register or to qualify does not have a material, adverse
effect on the condition (financial or other), business, properties,
net assets or results of operations of the Manager;
(ii) The Manager is duly registered with the Commission
under the Advisers Act as an investment adviser and is not prohibited
by the Advisers Act, the 1940 Act or the Rules and Regulations under
such acts from acting for the Fund under the Management Agreement as
contemplated by the Prospectus (and any amendment or supplement
thereto);
(iii) The Manager has corporate power and authority to
enter into this Agreement and the Management Agreement and this
Agreement and the Management Agreement have been duly authorized,
executed and delivered by the Manager and the Management Agreement is
a valid, legal and binding agreement of the Manager, enforceable
against the Manager in accordance with its terms, except as
enforcement of rights to indemnity and contribution hereunder may be
limited by Federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the
Manager's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
25
(iv) The Management Agreement complies in all material
respects with all applicable provisions of the Advisers Act, the 1940
Act and the Advisers Act Rules and Regulations and the 1940 Act Rules
and Regulations;
(v) Neither the execution and delivery by the Manager of
this Agreement or the Management Agreement nor the consummation by the
Manager of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Incorporation or By-Laws of the Manager or any material
agreement, indenture, lease or other instrument to which the Manager
is a party or by which it or any of its properties is bound that is
known to such counsel after reasonable inquiry, or will result in the
creation or imposition of any material lien, charge or encumbrance
upon any property or assets of the Manager, nor will any such action
result in any violation of any existing material law, regulation,
ruling (assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Fund or any of its
properties;
(vi) The description of the Manager and its business in
the Prospectus (and any amendment or supplement thereto) complies in
all material respects with all requirements of the 1933 Act, the 1940
Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in the
Prospectus (and any amendment or supplement thereto), there are no
actions, suits or other legal or governmental proceedings pending or
threatened against the Manager or to which the Manager or any of its
property is subject which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
to either of them);
(viii) The Manager owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Manager to carry on its business as contemplated in the Prospectus
(and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or order
of or registration or filing with any court, regulatory body,
administrative or other governmental body, agency or official is
required on the part of the Manager for the performance of this
Agreement or the Management Agreement by the Manager or for the
consummation by the Manager of the transactions contemplated hereby or
thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of
26
the Registration Statement and the Prospectus, including review and
discussion of the contents thereof and nothing has come to its attention
that has caused it to believe that the Registration Statement at the time
it became effective or the Prospectus, as of its date and as of the Closing
Date or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading or that any amendment or supplement to the Prospectus,
as of the Closing Date or the Option Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements
and the notes thereto and the schedules and other financial and statistical
data included in the Registration Statement or the Prospectus).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the State of Illinois, the
Delaware General Corporation Law statute and the laws of the United States
and may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by the Manager as to laws of any jurisdiction other
than the United States, the State of Illinois and the Delaware General
Corporation Law statute, provided that (X) each such local counsel is
acceptable to the Representatives, (Y) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion
is delivered to the Representatives and is, in form and substance
satisfactory to them and their counsel and (Z) counsel shall state in their
view that they believe that they and the Underwriters are justified in
relying thereon.
(d) (i) You shall have received on the Closing Date an opinion of
Xxxxxxx, Xxxxxxx & Xxxxxxx LLP, special Ohio counsel to the Fund, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters' to the effect that:
The statements contained in the Prospectus under the headings
"Risks - Concentration Risk" and "Tax Matters - Ohio Tax Matters" and in
Appendix D to the statement of additional information under the headings
"Factors Pertaining to Ohio" and "Ohio Tax Matters", to the extent that
such statements constitute matters of law or legal conclusions, provide a
fair and accurate summary of such law or conclusions. Such statements are
based on current law and special counsel's understanding of the Fund's
proposed operations, as disclosed in the Prospectus.
Such counsel shall also state that although special counsel does not pass
upon or assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus (other
than to the extent set forth above), and has not made any independent check or
verification thereof, no facts have come to the attention of such special
counsel which would lead it to believe that the material
27
contained in the Prospectus under the headings "Risks -Concentration Risk" and
"Tax Matters - Ohio Tax Matters" and in Appendix D to the statement of
additional information under the headings "Factors Pertaining to Ohio" and "Ohio
Tax Matters", as of their respective dates or the Closing Date or the Option
Closing Date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any statement contained in any amendment or
supplement to the Prospectus or statement of additional information under such
headings, as of its respective date, and as of the Closing Date or the Option
Closing Date, contained any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such special counsel may rely as to matters of fact,
to the extent such special counsel deems proper, on certificates of responsible
officers of the Fund and of the Manager, and of public officials.
(ii) You shall have received on the Closing Date a comfort
letter, substantially in the form heretofore approved by you, from Xxxxxxx and
Xxxxxx, special counsel to the Fund, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, with respect to the taxable
equivalent yield tables in Appendix B to the statement of additional information
under the heading "Ohio".
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you, as Representatives of
the several Underwriters, with respect to such matters as the Underwriters may
require and the Fund, the Manager and their respective counsels shall have
furnished to such counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Prepricing Prospectus or any sales
material shall have been issued and no proceedings for such purpose or for the
purpose of commencing an enforcement action against the Fund, the Manager or,
with respect to the transactions contemplated by the Prospectus (or any
amendment or supplement thereto) and this Agreement, any Underwriter, may be
pending before or, to the knowledge of the Fund, the Manager or any Underwriter
or in the reasonable view of counsel to the Underwriters, shall be threatened or
contemplated by the Commission at or prior to the Closing Date and that any
request for additional information on the part of the Commission (to be included
in the Registration Statement, the Prospectus or otherwise)
28
be complied with to the satisfaction of the Representatives, (ii) there shall
not have been any change in the capital stock of the Fund nor any material
increase in debt of the Fund from that set forth in the Prospectus (and any
amendment or supplement thereto) and the Fund shall not have sustained any
material liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto); (iii)
since the date of the Prospectus there shall not have been any material, adverse
change in the condition (financial or other), business, prospects, properties,
net assets or results of operations of the Fund or the Manager; (iv) the Fund
and the Manager must not have sustained any material loss or interference with
its business from any court or from legislative or other governmental action,
order or decree or from any other occurrence not described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them); and (v) all of the representations and warranties of the Fund and the
Manager contained in this Agreement shall be true and correct on and as of the
date hereof and as of the Closing Date as if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a prospective
change in or affecting the condition (financial or other), business, prospects,
properties, net assets or results of operations of the Fund or the Manager not
contemplated by the Prospectus (and any amendment or supplement thereto), which
in your opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Shares or (ii) any event or
development relating to or involving the Fund, the Manager or any officer or
trustee or director of the Fund or the Manager which makes any statement of a
material fact made in the Prospectus (or any amendment or supplement thereto)
untrue or which, in the opinion of the Fund and its counsel or the Underwriters
and their counsel, requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order to state a material
fact required by the 1933 Act, the 1940 Act, the Rules and Regulations or any
other law to be stated therein or necessary in order to make the statements
therein (in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, if amending or supplementing the Prospectus (or
any amendment or supplement thereto) to reflect such event or development would,
in your opinion, as Representatives of the several Underwriters, materially,
adversely affect the market for the Shares.
(i) That neither the Fund nor the Manager shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with by
them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a certificate,
dated such date, of the president or any vice president and of the controller or
treasurer of each of the Fund and the Manager certifying that (i) the signers
have carefully examined the Registration Statement, the Prospectus (and any
amendments or supplements to either of them) and this Agreement, (ii) the
representations and warranties of the Fund (with respect to the certificates
from such Fund officers) and the representations of the Manager (with respect to
the certificates from such officers of the Manager) in this Agreement are true
and correct on and as of the date of the certificate as if made on such date,
(iii) since
29
the date of the Prospectus (and any amendment or supplement thereto) there
has not been any material, adverse change in the condition (financial or
other), business, prospects (other than as a result of a change in the
financial markets generally), properties, net assets or results of
operations of the Fund (with respect to the certificates from such Fund
officers) or the Manager (with respect to the certificates from such
officers of the Manager), (iv) to the knowledge of such officers after
reasonable investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect on the Fund (with respect to the
certificates from such Fund officers) or the Manager (with respect to the
certificates from such officers of the Manager) has been issued and no
proceedings for any such purpose are pending before or threatened by the
Commission or any court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official, (v) each of the Fund (with respect
to certificates from such Fund officers) and the Manager (with respect to
certificates from such officers of the Manager) has performed and complied
with all agreements that this Agreement require it to perform by such
Closing Date, (vi) neither the Fund (with respect to the certificate from
such officers of the Fund) nor the Manager (with respect to the certificate
from such officers of the Manager) has sustained any material loss or
interference with its business from any court or from legislative or other
governmental action, order or decree or from any other occurrence not
described in the Registration Statement and the Prospectus and any
amendment or supplement to either of them and (vii) with respect to the
certificate from such officers of the Fund, there has not been any change
in the capital stock of the Fund nor any material increase in the debt of
the Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund has not sustained any material liabilities
or obligations, direct or contingent, other than those reflected in the
Prospectus (and any amendment or supplement thereto).
(k) That the Fund and the Manager shall have furnished to you such
further certificates, documents and opinions of counsel as you shall
reasonably request (including certificates of officers of the Fund and the
Manager).
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Manager and delivered to you, as Representatives of the Underwriters or to
Underwriters' counsel, shall be deemed a representation and warranty by the
Fund or the Manager to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to (i) the accuracy of and compliance with the
representations and warranties of the Fund and the Manager contained herein
on and as of the Option Closing Date as though made on any Option Closing
Date, (ii) satisfaction on and as of any Option Closing Date of the
conditions set forth in this Section 9 except that, if any Option
30
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (b), (c), (d), (e), (f), (j), (k) and
this paragraph shall be dated the Option Closing Date in question and the
opinions and letters called for by paragraphs (b), (c), (d) and (e) shall
be revised to reflect the sale of Additional Shares and (iii) the absence
of circumstances on or prior to the Option Closing Date which would permit
termination of this Agreement pursuant to Section 11 hereof if they existed
on or prior to the Closing Date.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Fund by notifying you or by
you, as Representatives of the several Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Firm Shares, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the aggregate number of Firm Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 20 of the
Xxxxxxx Xxxxx Xxxxxx Master Agreement Among Underwriters, to purchase Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Fund for the purchase of
such Firm Shares by one or more non-defaulting Underwriters or other party or
parties approved by you and the Fund are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Fund. In any such case which does not result in
termination of this Agreement, either you or the Fund shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect 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.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
31
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Fund or the Manager by notice to the Fund or the Manager if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in the Shares or securities generally on the NYSE, AMEX, Nasdaq National
Market or the Nasdaq Stock Market shall have been suspended or materially
limited, (ii) additional material governmental restrictions not in force on the
date of this Agreement have been imposed upon trading in securities generally or
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities or (iii) any outbreak or
material escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions, occurs, the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Fund or the Manager by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and
--------
expenses and all other costs and expenses incident to the performance by the
Fund of its obligations hereunder: (a) the preparation, printing or
reproduction, filing (including, without limitation, the filing fees prescribed
by the 1933 Act, the 1940 Act and the Rules and Regulations) and distribution of
the Registration Statement (including exhibits thereto), the Prospectus, each
Prepricing Prospectus and the 1940 Act Notification and all amendments or
supplements to any of them, (b) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus, each Prepricing
Prospectus, any sales material and all amendments or supplements to any of them
as may be reasonably requested for use in connection with the offering and sale
of the Shares, (c) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes and transfer
agent and registrar fees payable in connection with the original issuance and
sale of such Shares, (d) the registrations or qualifications of the Shares for
offer and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification), (e) the fees and
expenses of the Fund's independent accountants, counsel for the Fund and of the
transfer agent, (f) the expenses of delivery to the Underwriters and dealers
(including postage, air freight and the cost of counting and packaging) of
copies of the Prospectus, the Prepricing Prospectus, any sales material and all
amendments or supplements to the Prospectus as may be requested for use in
connection with the offering and sale of the Shares, (g) the printing (or
reproduction) and delivery of this Agreement, any dealer agreements, the
preliminary and supplemental Blue Sky Memoranda and all other company-authorized
agreements or other documents printed (or reproduced) and delivered in
connection with the offering of the Shares, (h) the filing fees and the fees and
expenses of counsel for the Underwriters in connection with any filings required
to be made with the NASD and incurred with respect to the review of the offering
of the Shares by the NASD, (i) the registration of the Shares under the 1934 Act
and the listing of the Shares on
32
the AMEX, and (j) an amount equal to (A) $20,000 plus (B) $.0025 per Share for
each Share in excess of 2,000,000 sold pursuant to this Agreement payable no
later than 45 days from the date of this Agreement to the Underwriters in
partial reimbursement of their expenses (but not including reimbursement for the
cost of one tombstone advertisement in a newspaper that is one-quarter of a
newspaper page or less in size) in connection with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will pay the
costs and expenses of the Fund set forth above in this Section 12 (a) through
(i), and reimbursements of Underwriter expenses in connection with the offering
shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The statements set forth in
-----------------------------------------
the last sentence of the last paragraph 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, the last sentence of the second paragraph, the first
sentence of the tenth paragraph, the first sentence of the twelfth paragraph and
the sixteenth 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.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (a) if to the Fund or the Manager, c/o Nuveen
Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
X. Berkshire or (b) if to you, as Representatives of the Underwriters, at the
office of Xxxxxxx Xxxxx Barney Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Fund, the Manager, their trustees, directors and officers and
the other controlling persons referred to in Section 8 hereof and their
respective successors and assigns to the extent provided herein and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" or the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of this Agreement are not
binding upon such officer, any of the trustees or the shareholders individually
but are binding only upon the assets and property of the Fund.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless
33
at least one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
34
Please confirm that the foregoing correctly sets forth the agreement among
the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN OHIO DIVIDEND
ADVANTAGE MUNICIPAL FUND 2
By: ___________________________
Title: Vice President
NUVEEN ADVISORY CORP.
By: _____________________________
Title: Vice President
35
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: XXXXXXX XXXXX XXXXXX INC.
NUVEEN INVESTMENTS
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
UBS WARBURG LLC
FIRST UNION SECURITIES, INC.
MCDONALD INVESTMENTS INC., a KeyCorp Company
XXXXXXX XXXXX & ASSOCIATES, INC.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX BARNEY INC.
By: ___________________________________
Title: Director
36
SCHEDULE I
Name of Underwriters Number of Common Shares
-------------------- -----------------------
Xxxxxxx Xxxxx Xxxxxx Inc...................................
Nuveen Investments.........................................
X.X. Xxxxxxx & Sons, Inc...................................
Prudential Securities Incorporated.........................
UBS Warburg LLC............................................
First Union Securities, Inc................................
McDonald Investments Inc., a KeyCorp Company...............
Xxxxxxx Xxxxx & Associates, Inc............................
Total _____________
