26,000,000 Shares*
NUVEEN SENIOR INCOME FUND
Common Shares of Beneficial Interest
Par Value $.01 Per Share
UNDERWRITING AGREEMENT
----------------------
October 26, 1999
PAINEWEBBER INCORPORATED
XXXX NUVEEN & CO. INCORPORATED
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
FIRST UNION SECURITIES, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
XXXX XXXXX XXXX XXXXXX, INCORPORATED
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nuveen Senior Income Fund, a Massachusetts business trust (the
"Fund"), proposes to issue and sell to you and the other underwriters named in
Schedule 1 hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), 26,000,000 shares of beneficial
interest (the "Firm Shares"), par value $.01 per share (the "Shares of
Beneficial Interest"). In addition, the Fund hereby grants to the Underwriters
an option (the "Option") to purchase up to an additional 3,900,000 of its Shares
of Beneficial Interest (the "Option Shares") solely for the purpose of covering
over-allotments. The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares."
Nuveen Senior Loan Asset Management Inc., a Delaware corporation (the
"Investment Adviser") and a wholly-owned subsidiary of The Xxxx Nuveen Company,
pursuant to which will act as the Fund's investment adviser pursuant to an
Investment Management Agreement by and between the Fund and the Investment
------------------
* Plus an option to purchase, in the aggregate, up to 3,900,000 additional
Shares of Beneficial Interest to cover over-allotments.
Adviser, dated as of October 26, 1999 (the "Investment Management Agreement").
The Underwriters acknowledge that certain registered broker-dealers may enter
into one or both of a Master Selected Dealer Agreement with PaineWebber
Incorporated, dated June 11, 1984 (the "PaineWebber Master Selected Dealer
Agreement") or with Xxxx Nuveen & Co. Incorporated ("Nuveen") dated May 2, 1999,
(the "Nuveen Master Selected Dealer Agreement"), pursuant to which such broker-
dealer may act as a Selling Group Member ("Selling Group Member") in connection
with the distribution of the Shares. The Underwriters acknowledge that in the
event such Selling Group Member has entered into both the PaineWebber Master
Selected Dealer Agreement and the Nuveen Master Selected Dealer Agreement the
terms and conditions of the PaineWebber Master Selected Dealer Agreement shall
control and that in the event such Selling Group Member shall have entered into
only the Nuveen Master Selected Dealer Agreement the terms of the Nuveen Master
Selected Dealer Agreement shall control. In addition, the Fund and the
Investment Adviser have entered into an Expense Reimbursement Agreement, dated
as of October 26, 1999 (the "Expense Reimbursement Agreement") and a
Subscription Agreement dated as of October 14, 1999 (the "Subscription
Agreement"). Chase Bank of Texas, National Association will act as the
custodian (the "Custodian") of the Fund's cash and portfolio assets pursuant to
a Custody Agreement between the Fund and the Custodian, effective as of October
26, 1999 (the "Custody Agreement"). The Chase Manhattan Bank will act as the
Fund's transfer agent and dividend disbursing agent (the "Transfer Agent")
pursuant to a transfer agency agreement between the Fund and the Transfer Agent,
dated as of October 26, 1999 (the "Transfer Agency Agreement"). The Fund has
adopted a Deferred Compensation Plan (the "Deferred Compensation Plan") in
connection with the compensation of certain of its trustees. In addition, The
Fund has adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan")
pursuant to which holders of Shares may elect to reinvest their dividends in
additional Shares of Beneficial Interest of the Fund. The Investment Adviser
has entered into a letter agreement relating to pricing services (the "Pricing
Services Agreement") dated as of October 26, 1999 with DLJ Capital Funding, Inc.
The Fund and the Investment Adviser each hereby confirms as follows
their agreements with the Representatives and the several other Underwriters.
1. Sale and Purchase; Compensation
(a) The Fund will issue and sell to each Underwriter, and each
Underwriter will purchase from the Fund, the number of Firm Shares set forth
opposite such Underwriter's name in Schedule 1 hereto, at the purchase price of
$9.55 per Firm Share.
(b) The Fund grants to the Underwriters the Option to purchase
all or any part of the Option Shares for the same purchase price per share as
for the Firm Shares. The Option may be exercised only to cover over-allotments
in the sales of the Firm Shares by the Underwriters. The number of Option Shares
(adjusted by the Representatives to eliminate fractions) to be purchased by each
Underwriter will be the
same percentage of the aggregate number of Option Shares being sold as such
Underwriter is obligated to purchase of the Firm Shares. Such Option may be
exercised in whole or in part, only to cover over-allotments, at any time or
from time to time on or before the 45th day after the date of this Underwriting
Agreement, upon written or telefacsimile notice (the "Option Shares Notice")
from the Representatives to the Fund no later than 12:00 noon, New York City
time, at least three and not more than five business days before the date
specified for closing in the Option Shares Notice (the "Option Shares Closing
Date"), setting forth the number of Option Shares to be purchased and the time
and date of such purchase. Upon delivery and receipt of the Option Shares
Notice, the Fund will issue and sell to each Underwriter, and each Underwriter
will purchase from the Fund, on the Option Shares Closing Date, its portion of
the number of Option Shares set forth in the Option Shares Notice.
(c) The obligations of the Underwriters under this Underwriting
Agreement are several and not joint and are undertaken on the basis of the
representations and are subject to the conditions set forth in this Underwriting
Agreement.
2. Payment and Delivery. Delivery by the Fund of the Firm Shares
(the "Firm Shares Closing") to the Representatives for the accounts of the
Underwriters against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to the Fund for the Firm Shares, will take place
at the offices of PaineWebber Incorporated (the "Managing Representative"), 1285
Avenue of the Americas, New York, New York or such other location as is agreed
upon by the parties hereto, or through the facilities of the Depository Trust
Company or another mutually agreeable facility, at 9:00 a.m., New York City
time, on the third business day following the date of this Underwriting
Agreement, or at such time on such other date, not later than ten business days
after the date of this Underwriting Agreement, as may be agreed upon by the Fund
and the Managing Representative (the "Firm Shares Closing Date").
If and to the extent that the Option is exercised, delivery of the
Option Shares and payment by the Underwriters (in the manner specified above)
will take place at the offices or through the facilities specified above for the
Firm Shares Closing at the time and date (which may be the Firm Shares Closing
Date) specified in the Option Shares Notice. Any Option Shares Closing Date may
not be later than three business days following the exercise of the related
Option. The Firm Shares Closing Date and any Option Shares Closing Date are
called the "Closing Dates."
Certificates evidencing Shares of Beneficial Interest will be in
definitive form (or temporary form acceptable to the New York Stock Exchange),
registered in such names and in such denominations as the Managing
Representative requests at least three full business days before the Firm Shares
Closing Date or, in the case of Option Shares, on the day of notice of exercise
of the Option as described in Section 1(b), and will be made available to the
Managing Representative for checking and packaging, at a place in New York City
designated by the Managing Representative, at least one full business day before
the relevant Closing Date.
3. Registration Statement and Prospectus; Public Offering. The Fund
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-86619 and 811-09571) relating
to the Shares (the "registration statement"), including a preliminary prospectus
(including any preliminary statement of additional information), and such
amendments to such registration statement as may have been required to the date
of this Underwriting Agreement. The preliminary prospectus (including any
preliminary statement of additional information) is to be used in connection
with the offering and sale of the Shares. The term "Preliminary Prospectus" as
used herein means any preliminary prospectus (including any preliminary
statement of additional information) included at any time as a part of the
registration statement and any advertisement or sales material deemed to be a
prospectus under Section 10(b) of the Securities Act pursuant to Rule 482 of the
Securities Act Rules.
The Fund has furnished the Representatives copies of such registration
statement, each amendment to such registration statement filed by the Fund with
the Commission and the Preliminary Prospectus filed by the Fund with the
Commission or used by the Fund. If the registration statement has not become
effective, a further amendment (the "Final Amendment") to such registration
statement, including the forms of final prospectus (including any final
statement of additional information), necessary to permit such registration
statement to become effective will promptly be filed by the Fund with the
Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the Securities Act Rules, a final prospectus (the "Rule 430A Prospectus")
containing such omitted information will be filed by the Fund with the
Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Fund and the Investment Adviser understand that the Underwriters
propose to make a public offering of the Firm Shares, as described in the
Prospectus, as soon after the Effective Date (or, if later, after the date this
Underwriting Agreement is signed) as the Managing Representative deems
advisable. The Fund confirms that the Underwriters and dealers have been
authorized to distribute the Preliminary Prospectus
relating to the Shares included in Pre-Effective Amendment No. 1 of the
registration statement and are authorized to distribute the Prospectus and any
amendments or supplements thereto.
4. Representations.
(a) Each of the Fund and the Investment Adviser jointly and
severally represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date on which the
Prospectus is first filed with the Commission pursuant to Rule 497(b), (h)
or (j) of the Securities Act Rules, as the case may be and (B) the date on
which any post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the Commission after the
later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which the distribution of the Shares is completed) became or
becomes effective or any amendment or supplement to the Prospectus was or
is filed with the Commission, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification complied
or will comply in all material respects with the requirements of the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules, as the case may be. On the Effective
Date and on the date that any post-effective amendment to the Registration
Statement (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this
Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) became or becomes effective, neither the Registration
Statement nor any such amendment did or will contain any untrue statement
of a material fact or omit to state a material fact required to be stated
in it or necessary to make the statements in it not misleading. At the
Effective Date and, if applicable, the date the Prospectus or any amendment
or supplement to the Prospectus was or is filed with the Commission and at
the Closing Dates, the Prospectus did not or will not, as the case may be,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated in it or necessary to make the statements in it,
in light of the circumstances under which they were made, not misleading.
The foregoing representations in this Section 4(a)(i) do not apply to
statements or omissions relating to the Underwriters made in reliance on
and in conformity with information furnished in writing to the Fund by the
Representatives expressly for use in the Registration Statement, the
Prospectus, or any amendments or supplements thereto, as described in
Section 7(f) hereof.
(ii) The Fund has been duly formed, is validly existing as
a business trust under the laws of The Commonwealth of Massachusetts, with
full power and authority to conduct all the activities conducted by it, to
own or lease all assets owned or leased by it and to conduct its business
as described in the Registration Statement and Prospectus, and the Fund is
duly licensed and qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or its
conducting of business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or has obtained
and currently maintains all material governmental licenses, permits,
consents, orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Prospectus. The Fund has no subsidiaries.
(iii) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial
Interest of the Fund conform in all material respects to the description of
them in the Prospectus. All the outstanding Shares of Beneficial Interest
have been duly authorized and are validly issued, fully paid and
nonassessable (except as described in the Registration Statement). The
Shares to be issued and delivered to and paid for by the Underwriters in
accordance with this Underwriting Agreement against payment therefor as
provided by this Underwriting Agreement have been duly authorized and when
issued and delivered to the Underwriters will have been validly issued and
will be fully paid and nonassessable (except as described in the
Registration Statement). No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(iv) The Fund is duly registered with the Commission under
the Investment Company Act as a non-diversified, closed-end management
investment company, and, subject to the filing of the Final Amendment if
not already filed, all action under the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules,
as the case may be, necessary to make the public offering and consummate
the sale of the Shares as provided in this Underwriting Agreement has or
will have been taken by the Fund.
(v) The Fund has full power and authority to enter into
each of this Underwriting Agreement, the Investment Management Agreement,
the Custody Agreement, the Transfer Agency Agreement, the Expense
Reimbursement Agreement, the Subscription
Agreement, the Dividend Reinvestment Plan and the Deferred Compensation
Plan (collectively, the "Fund Agreements") and to perform all of the terms
and provisions hereof and thereof to be carried out by it and (A) each Fund
Agreement has been duly and validly authorized, executed and delivered by
or on behalf of the Fund, (B) each Fund Agreement does not violate in any
material respect any of the applicable provisions of the Investment Company
Act, the Investment Advisers Act of 1940 (the "Advisers Act"), the
Investment Company Act Rules and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules"), as the case
may be, and (C) assuming due authorization, execution and delivery by the
other parties thereto, each Fund Agreement constitutes the legal, valid and
binding obligation of the Fund enforceable in accordance with its terms,
(1) subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) with respect to this Underwriting Agreement,
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
(vi) None of (A) the execution and delivery by the Fund of
the Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (C) the performance by the
Fund of its obligations under any of the Fund Agreements or consummation by
the Fund of the other transactions contemplated by the Fund Agreements
conflicts with or will conflict with, or results or will result in a breach
of, the Declaration of Trust or the By-laws of the Fund or a material
breach of any material agreement or instrument to which the Fund is a party
or by which the Fund is bound, or any law, rule or regulation, or order of
any court, governmental instrumentality, securities exchange or association
or arbitrator, whether foreign or domestic, applicable to the Fund (which
breach, either individually or in the aggregate, would have a material
adverse effect on the Fund), other than state securities or "blue sky" laws
applicable in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(vii) The Fund is not currently in material breach of, or
in material default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected.
(viii) No person has any right to the registration of any
securities of the Fund because of the filing of the registration statement.
(ix) No consent, approval, authorization or order of any
court or governmental agency or body or securities exchange or association,
whether foreign or domestic, is required by the Fund for the consummation
by the Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be performed by
or on behalf of it in each case as contemplated in the Fund Agreements,
except such as (A) the absence of which, either individually or in the
aggregate, would not have a material adverse effect on the Fund (B) have
been obtained under the Securities Act, the Exchange Act, the Investment
Company Act, the Advisers Act, the Securities Act Rules, the Exchange Act
Rules, the Investment Company Act Rules, and the Advisers Act Rules, and
(C) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(x) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange and the Fund's
Registration Statement on Form 8-A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), has become effective.
(xi) KPMG LLP, whose report appears in the Prospectus, are
independent public accountants with respect to the Fund as required by the
Securities Act, the Investment Company Act, the Securities Act Rules and
the Investment Company Act Rules.
(xii) The statement of assets and liabilities included in
the Registration Statement and the Prospectus presents fairly in all
material respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis (except as
otherwise noted in any footnotes thereto), the financial position of the
Fund as of the date indicated.
(xiii) The Fund will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets
through an asset reconciliation procedure or otherwise at reasonable
intervals and appropriate action is taken with respect to any differences.
(xiv) Since the date as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Fund (other
than as a result of changes in the markets for senior secured corporate
loans generally), whether or not arising in the ordinary course of
business, (B) there have been no material transactions entered into by the
Fund other than those in the ordinary course of its business and (C) there
has been no dividend or distribution of any kind declared, paid or made on
any class of its capital shares.
(xv) There is no action, suit or proceeding before or by
any court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or, to the
knowledge of the Fund, threatened against or affecting the Fund, which (A)
could reasonably be expected to result in any material adverse change in
the condition, financial or otherwise or business affairs of the Fund or
could reasonably be expected to materially adversely affect the properties
or assets of the Fund or (B) is of a character required to be described in
the Registration Statement or the Prospectus and is not so described as
required; and there are no contracts, franchises or other documents that
are of a character required to be described in, or that are required to be
filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(xvi) Except for stabilization transactions conducted by
the Underwriters, and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's dividend investment
plan (the "Dividend Investment Plan") effected following the date on which
the distribution of the Shares is completed in accordance with the policies
of the Fund as set forth in the Prospectus, the Fund has not taken and will
not take, directly or indirectly, any action designed or which could
reasonably be expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Shares of Beneficial
Interest in violation of applicable federal securities laws.
(xvii) 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 (the "Code").
(xviii) To the knowledge of the Fund, no advertising, sales
literature or other promotional materials (including road show slides or
road show tapes) were authorized or prepared by the Fund and the Investment
Adviser or any representative thereof for use in connection with the public
offering or sale of the Shares other than the (A) client brochure, (B) the
adviser brochure, (C) the adviser fact card, (D) the announcement card, (E)
the mailing cover letter and (F) the prospecting letter, drafts of each of
which were filed with the NASD on September 3, 1999 and September 14, 1999,
and final forms of which were filed with the NASD on September ___, 1999,
and (G) the road show slides and accompanying presentation materials
prepared by the Fund and the Investment Adviser for posting on one or more
Internet websites (collectively, the "sales materials"); the sales
materials complied and comply in all material respects with the applicable
requirements of the Securities Act, the Securities Act Rules and the rules
and interpretations of the NASD; and none of the sales materials contained
or contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, in light of the
circumstances under which they were made.
(b) The Investment Adviser represents to each Underwriter as
follows:
(i) The Investment Adviser has been duly formed, is validly
existing as a corporation under the laws of Delaware with full power and
authority to conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus, and the Investment
Adviser is duly licensed and qualified to do business and in good standing
in each jurisdiction in which it is required to be so qualified, except to
the extent that failure to be so qualified or be in good standing would not
have a material adverse affect on the Investment Adviser; and the
Investment Adviser owns, possesses or has obtained and currently maintains
all governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its
business as contemplated in the Registration Statement and the Prospectus
except those the absence of which, either individually or in the aggregate,
would not have a material adverse effect on the Investment Adviser.
(ii) The Investment Adviser is (A) duly registered as an
investment adviser under the Advisers Act and (B) not prohibited by the
Advisers Act, the Investment Company Act, the Advisers Act Rules or the
Investment Company Act Rules from acting
as the investment adviser for the Fund as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
(iii) The Investment Adviser has full power and authority
to enter into each of this Underwriting Agreement, the Investment
Management Agreement, the Expense Reimbursement Agreement, the Subscription
Agreement and the Pricing Agreement (together, such agreements being
referred to as the "Investment Adviser Agreements") and to carry out all
the terms and provisions hereof and thereof to be carried out by it; and
each Investment Adviser Agreement has been duly and validly authorized,
executed and delivered by the Investment Adviser; none of the Investment
Adviser Agreements violate in any material respect any of the applicable
provisions of the Investment Company Act, the Advisers Act, the Investment
Company Act Rules and the Advisers Act Rules; and assuming due
authorization, execution and delivery by the other parties thereto, each
Investment Adviser Agreement constitutes a legal, valid and binding
obligation of the Investment Adviser, enforceable in accordance with its
terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (2) with respect to this Underwriting
Agreement, except as rights to indemnity thereunder may be limited by
federal or state securities laws.
(iv) Neither (A) the execution and delivery by the
Investment Adviser of any Investment Adviser Agreement by the Investment
Adviser nor (B) the consummation by the Investment Adviser of the
transactions contemplated by, or the performance of its obligations under
any Investment Adviser Agreement conflicts or will conflict with, or
results or will result in a breach of, the Certificate of Incorporation or
By-Laws of the Investment Adviser or any material agreement or instrument
to which the Investment Adviser is a party or by which the Investment
Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Investment
Adviser which conflict or breach, either individually or in the aggregate,
would have a material adverse effect on the Investment Adviser.
(v) No consent, approval, authorization or order of any
court, governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by the
Investment Adviser of its obligations under, any Investment Adviser
Agreement, as the case may be, except such as (A) have been obtained under
the Investment Company Act, the Advisers Act, the Securities Act, the
Investment Company Act Rules, the Advisers Act Rules and the Securities Act
Rules, and (B) may be required by the New York Stock Exchange or under
state securities or "blue sky" laws, in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(vi) The description of the Investment Adviser and its
business, and the statements attributed to the Investment Adviser, in the
Registration Statement and the Prospectus comply in all material respects
with the requirements of the Securities Act, the Investment Company Act,
the Securities Act Rules and the Investment Company Act Rules and, with
respect to the Prospectus, do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(vii) Except as set forth in the Registration Statement and
Prospectus, there is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to the knowledge of
the Investment Adviser, threatened, against or affecting the Investment
Adviser of a nature required to be disclosed in the Registration Statement
or Prospectus or that could reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Investment Adviser or the ability of
the Investment Adviser to fulfill its respective obligations under any
Investment Adviser Agreement.
(viii) Except for stabilization activities conducted by the
Underwriters and except for tender offers, Share repurchases and the
issuance or purchase of Shares pursuant to the Fund's Dividend Investment
Plan effected following the date on which the distribution of the Shares is
completed in accordance with the policies of the Fund as set forth in the
Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which could reasonably be
expected to cause or result in, or which will constitute, stabilization or
manipulation of the price of the Shares of Beneficial Interest in violation
of applicable federal securities laws.
(ix) In the event that the Fund or the Investment Adviser
makes available any sales materials or other 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 Investment Adviser will install and maintain pre-
qualification and password-protection or similar procedures which are
designed and reasonably expected to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers and
registered representatives thereof.
5. Agreements of the Parties.
(a) If the registration statement relating to the Shares has not
yet become effective, the Fund will promptly file the Final Amendment, if not
previously filed, with the Commission, and will use its commercially reasonable
best efforts to cause such registration statement to become effective and, as
soon as the Fund is advised, will advise the Representatives when the
Registration Statement or any amendment thereto has become effective. 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 Securities Act Rules, the Fund will file a 430A Prospectus pursuant to Rule
497(h) of the Securities Act Rules 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. 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(b) or (j) of the Securities Act
Rules as promptly as practicable, but no later than the fifth business day
following the date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either case, the
Fund will provide the Representatives satisfactory evidence of the filing. The
Fund will not file with the Commission any Prospectus or any other amendment
(except any post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting Agreement or (y)
the date on which distribution of the Shares is completed) or supplement to the
Registration Statement or the Prospectus unless a copy has first been submitted
to the Managing Representative a reasonable time before its filing and the
Managing Representative has not objected to it in writing within a reasonable
time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund
will advise the Representatives promptly (1) of the issuance by the Commission
of any order in respect of the Fund or the Investment Adviser which relates to
the Fund, or which relates to any material arrangements or proposed material
arrangements involving the Fund or the Investment Adviser, (2) of the initiation
or threatening in writing of any proceedings for, or receipt by the Fund of any
written notice with respect to, the suspension of the qualification of the
Shares for sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration Statement, (3) of
receipt by the Fund, or any representative or attorney of the Fund, of
any other communication from the Commission relating in any material way to the
Fund, the Registration Statement, the Notification, any Preliminary Prospectus,
the Prospectus or to the transactions contemplated by this Underwriting
Agreement and (4) the issuance by any court, regulatory body, administrative
agency or other governmental agency or body, whether foreign or domestic, of any
order, ruling or decree, or the threat in writing to initiate any proceedings
with respect thereto, regarding the Fund, which relates in any material way to
the Fund or any material arrangements or proposed material arrangements
involving the Fund. The Fund will make every reasonable effort to prevent the
issuance of any order suspending the effectiveness of the Registration Statement
and, if any such order is issued, to obtain its lifting as soon as practicable.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Representatives, without charge, a
signed copy of the registration statement and the Notification and of any
amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver, without charge,
to the Representatives, the Underwriters and any dealers, at such office or
offices as the Representatives may designate, as many copies of the Prospectus
as the Representatives may reasonably request, and, if any event occurs during
such period as a result of which it is necessary to amend or supplement the
Prospectus, in order to make the statements therein, in light of the
circumstances existing when such Prospectus is delivered to a purchaser of
Shares, not misleading in any material respect, or if during such period it is
necessary to amend or supplement the Prospectus to comply with the Securities
Act, the Investment Company Act, the Securities Act Rules or the Investment
Company Act Rules, the Fund promptly will prepare, submit to the Managing
Representative, file with the Commission and deliver, without charge, to the
Underwriters and to dealers (whose names and addresses the Representatives will
furnish to the Fund) to whom Shares may have been sold by the Underwriters, and
to other dealers on request, amendments or supplements to the Prospectus so that
the statements in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply with the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders of the
Fund's securities, as soon as practicable but in no event later than the last
day of the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Securities Act and, at the option of the
Fund, Rule 158 of the Securities Act Rules.
(f) The Fund will take such actions as the Representatives
reasonably request in order to qualify the Shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Representatives
reasonably designate; provided that the Fund shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(g) If the transactions contemplated by this Underwriting
Agreement are consummated, the Fund shall pay all costs and expenses incident to
the performance of the obligations of the Fund under this Underwriting
Agreement, including but not limited to costs and expenses of or relating to (1)
the fees, disbursements and expenses of the Fund's counsel and accountants in
connection with the registration of the Shares and all other expenses in
connection with the preparation, printing and filing of the registration
statement and exhibits to it, each Preliminary Prospectus, the Prospectus and
all amendments and supplements thereto, (2) the issuance of the Shares and the
preparation and delivery of certificates for the Shares, (3) the registration or
qualification of the Shares for offer and sale under the securities or "blue
sky" laws of the jurisdictions referred to in the foregoing paragraph, including
the reasonable fees and disbursements, if any, of counsel for the Underwriters
in that connection, and the preparation and printing of preliminary and
supplemental "blue sky" memoranda, (4) the furnishing (including costs of
design, production, shipping and mailing) to the Underwriters and dealers of
copies of each Preliminary Prospectus relating to the Shares, the sales
materials, the Prospectus, and all amendments or supplements to the Prospectus,
and of the other documents required by this Section to be so furnished, (5) the
filing requirements of the National Association of Securities Dealers, Inc., in
connection with its review of the financing, including filing fees and the
separate fees, disbursements and other charges, if any, of counsel for the
Underwriters in that connection, (6) all transfer taxes, if any, with respect to
the sale and delivery of the Shares to the Underwriters, (7) the listing of the
Shares on the New York Stock Exchange and (8) the transfer agent for the Shares;
provided that (i) the Fund, the Investment Adviser and each Underwriter shall
pay its own costs and expenses relating to the attendance at any road show or
other informational meeting relating to the Fund, (ii) each Underwriter shall
pay the costs and expenses of any internal promotional or informational
materials relating to the Fund, other than the sales materials, prepared by such
Underwriter in connection with the offering of the Shares, (iii) the
Underwriters shall pay the costs and expenses of any "tombstone" announcements
relating to the offering of the Shares and (iv) except as expressly provided in
this Section 5(g), the
Underwriters shall pay their own costs and expenses, including fees and
disbursements of their counsel.
(h) If the transactions contemplated by this Underwriting
Agreement are not consummated, except as otherwise provided herein, no party
will be under any liability to any other party, except that (1) if this
Underwriting Agreement is terminated by (x) the Fund or the Investment Adviser
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8
hereof) or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Fund or the Investment Adviser
to comply with any material terms or because any of the conditions in Section 6
are not satisfied, the Investment Adviser and the Fund, jointly and severally,
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees, disbursements and other charges of their counsel) reasonably
incurred by them in connection with the proposed purchase and sale of the Shares
(provided, however, that the Fund and the Investment Adviser shall not be liable
for any loss of anticipated profits or speculative or consequential or similar
damages for such termination) and (2) no Underwriter who has failed or refused
to purchase the Shares agreed to be purchased by it under this Underwriting
Agreement, in breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund and the Investment Adviser and the
other Underwriters for damages occasioned by its default.
(i) Without the prior written consent of the Managing
Representatives the Fund will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Shares of Beneficial Interest pursuant to the dividend
reinvestment plan established by the Fund and except in connection with any
offering of preferred shares of beneficial interest as contemplated by the
Prospectus.
(j) The Fund will use its commercially reasonable best efforts
to list the Shares on the New York Stock Exchange and comply with the rules and
regulations of such exchange.
(k) 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
objective and policies of the Fund as described in the Prospectus.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Shares are subject to the accuracy on the date
of this Underwriting Agreement, and on the Closing Dates, of the representations
of the Fund and the Investment Adviser in this Underwriting Agreement, to the
accuracy and completeness of all statements made by the Fund or the Investment
Adviser or any of their respective officers in any certificate delivered to the
Representatives or their counsel pursuant to this Underwriting Agreement, to
performance by the Fund and the
Investment Adviser of their respective obligations under this Underwriting
Agreement and to each of the following additional conditions:
(a) The registration statement must have become effective by
5:30 p.m., New York City time, on the date of this Underwriting Agreement or
such later date and time as the Managing Representative consents to in writing.
The Prospectus must have been filed in accordance with Rule 497(b), (h) or (j),
as the case may be, of the Securities Act Rules.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters, threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (1) there must not have been any
material change in the Shares of Beneficial Interest or liabilities of the Fund
except as set forth in or contemplated by the Prospectus; (2) there must not
have been any material adverse change in the general affairs, prospects,
management, business, financial condition or results of operations of the Fund
or the Investment Adviser whether or not arising from transactions in the
ordinary course of business as set forth in or contemplated by the Prospectus
(other than, in the case of the Fund, as a result of changes in the markets for
senior secured corporate loans generally); (3) the Fund 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, whether foreign or
domestic, or from any other occurrence not described in the Registration
Statement and Prospectus; and (4) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or that is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause (1), (2), (3) or (4)
of this paragraph (c) makes it impracticable or inadvisable to consummate the
sale and delivery of the Shares pursuant to this Underwriting Agreement by the
Underwriters, at the initial public offering price of the Shares.
(d) The Representatives must have received on each Closing Date
a certificate, dated such date, of the President or a Vice-President and the
chief financial or accounting officer or controller or treasurer of each of the
Fund and the Investment Adviser certifying that (1) the signers have carefully
examined the Registration Statement, the Prospectus, and this Underwriting
Agreement, (2) the representations of the Fund (with respect to the certificates
from such Fund officers) and
the representations of the Investment Adviser (with respect to the certificates
from such officers of the Investment Adviser) in this Underwriting Agreement are
accurate on and as of the date of the certificate, (3) there has not been any
material adverse change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund (with respect to the
certificates from such Fund officers) or the Investment Adviser (with respect to
the certificates from such officers of the Investment Adviser), which change
would materially and adversely affect the ability of the Fund or the Investment
Adviser, as the case may be, to fulfill its obligations under this Underwriting
Agreement or the Investment Advisory Agreement, whether or not arising from
transactions in the ordinary course of business (other than, with respect to the
certificates from such Fund officers, as a result of changes in the markets for
senior secured corporate loans generally), (4) with respect to the Fund only, to
the knowledge of such officers, no order suspending the effectiveness of the
Registration Statement, prohibiting the sale of any of the Shares or otherwise
having a material adverse effect on the Fund has been issued and no proceedings
for any such purpose are pending before or threatened by the Commission or any
other regulatory body, whether foreign or domestic, (5) to the knowledge of the
officers of the Investment Adviser, after reasonable investigation, no order
having a material adverse effect on the ability of the Investment Adviser to
fulfill its obligations under this Underwriting Agreement or the Investment
Advisory Agreement, as the case may be, has been issued and no proceedings for
any such purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, and (6) each of the Fund (with
respect to the certificates from such Fund officers) and the Investment Adviser
(with respect to the certificates from such officers of the Investment Adviser)
has performed all of its respective agreements that this Underwriting Agreement
requires it to perform by such Closing Date (to the extent not waived in writing
by the Managing Representative).
(e) The Representatives must receive on each Closing Date the
opinions dated such Closing Date substantially in the form of Annexes A and B to
this Underwriting Agreement from the counsel identified in each such Annex.
(f) The Representatives must receive on each Closing Date from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its affiliated entities, its
counsel, an opinion dated such Closing Date with respect to the Fund, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Fund
and the Investment Adviser must have furnished to such counsel such documents as
counsel may reasonably request for the purpose of enabling them to render such
opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
letter, dated such
date, substantially in the form of Annex C to this Underwriting Agreement from
the firm of accountants designated in such Annex. The Representatives also must
receive on each Closing Date a signed letter from such accountants, dated as of
such Closing Date, confirming on the basis of a review in accordance with the
procedures set forth in their earlier letter that nothing has come to their
attention during the period from a date not more than five business days before
the date of this Underwriting Agreement, specified in the letter, to a date not
more than five business days before such Closing Date, that would require any
change in their letter referred to in the foregoing sentence.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. Indemnification and Contribution.
(a) Each of the Fund and the Investment Adviser, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of such Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any and all amounts paid in settlement (in compliance herewith) of, any
action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), to which such Underwriter or any such person,
or any of them, may become subject under the Securities Act, the Exchange Act,
the Investment Company Act, the Advisers Act or other federal or state statutory
law or regulation, at common law or otherwise, whether foreign or domestic,
insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based on (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the sales materials, or any amendment or supplement to the
Registration Statement, the Preliminary Prospectus, the Prospectus, the sales
materials or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Registration Statement, the Preliminary
Prospectus, the Prospectus, or in any application or other document executed by
or on behalf of the Fund or based on written information furnished by or on
behalf of the Fund filed in any jurisdiction in order to qualify the Shares
under the securities laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state, in any or all such documents, a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by such Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage
arising out of or based upon matters covered by clause (i) or (ii) above
(provided, however, that neither of the Fund nor the Investment Adviser shall be
liable under this clause (iii) to the extent it is finally judicially determined
by a court of competent jurisdiction that such loss, claim, liability, expense
or damage resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such indemnified party through its gross negligence, bad
faith or willful misconduct); provided that neither the Fund nor the Investment
Adviser will be liable to the extent that such losses, claims, liabilities,
expenses or damages arise from the sale of the Shares in the public offering to
any person by an underwriter, including an Underwriter, pursuant to this
Agreement and are based on an untrue statement or omission or alleged untrue
statement or omission (1) made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Fund by the
Representatives on behalf of Underwriters expressly for inclusion in the
Registration Statement, the Preliminary Prospectus or the Prospectus or (2) if a
copy of the Prospectus was not sent or given to such person at or before the
confirmation of the sale to such person in any case where such delivery is
required by the Securities Act, unless such failure to deliver such Prospectus
was a result of noncompliance by the Fund with Section 5(d) hereof or (3) made
in any preliminary prospectus which untrue statement or omission or alleged
untrue statement or omission was corrected in all material respects in the
Prospectus (as then amended or supplemented) if the Fund and/or the Investment
Adviser, as the case may be, shall sustain the burden of proving that the
Underwriters sold Shares to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) if the Fund had previously furnished copies thereof to the
Underwriters in accordance with this Agreement, and the Underwriters failed to
deliver the corrected Prospectus, if required by law to have so delivered it and
if delivered would have been a complete defense against the person asserting
such loss, claim, liability, expense or damage. This indemnity agreement will be
in addition to any liability that the Fund, the Investment Adviser and Nuveen
might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Fund
and the Investment Adviser, each person, if any, who controls the Fund or the
Investment Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each trustee of the Fund and each officer of the
Fund who signs the Registration Statement to the same extent as the foregoing
indemnity from the Fund or the Investment Adviser to the Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission of a material fact made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Fund by
such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or Prospectus. This indemnity will be in addition to any
liability that such Underwriter might otherwise have; provided, however, that in
no case shall such Underwriter be liable or responsible hereunder for any amount
in excess of the fees and commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provision of this Section 7 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be liable to
the indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred by
the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
disbursements and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on the advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. Subject to the requirements of
Investment Company Act Release No. 11330, all such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm (in addition to local counsel) admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
such indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this
Section 7 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability to such claimants arising or that may arise
out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
applicable but for any reason is held to be unavailable from the Fund, the
Investment Adviser, or the Underwriters, the Fund, the Investment Adviser and
the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement (in
compliance herewith) of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Fund and the Investment
Adviser from persons other than the Underwriters, such as persons who control
the Fund and the Investment Adviser within the meaning of the Securities Act or
the Exchange Act, officers of the Fund who signed the Registration Statement and
directors of the Fund, who may also be liable for contribution) to which the
Fund, the Investment Adviser and the Underwriters may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Fund and the Investment Adviser on the one hand and the Underwriters on the
other. The relative benefits received by the Fund and the Investment Adviser
(treated jointly for this purpose as one person) on the one hand 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 bear to the total fees and commissions received by the Underwriters.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only such relative benefits
referred to in the foregoing sentence but also the relative fault of the Fund
and the Investment Adviser (treated jointly for this purpose as one person) on
the one hand and the Underwriters on the other hand in connection with respect
to the statements or omissions or alleged statements or omissions that resulted
in the losses, claims, liabilities, expenses or damages (including any
investigative, legal or other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), as well as any other relevant equitable considerations
appropriate in the circumstances. Such relative fault of the parties shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Fund, the Investment Adviser or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission and
any other equitable considerations appropriate in the circumstances. The Fund,
the Investment Adviser and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action
in respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d) any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding any other provisions of
this Section 7(d), the Underwriters shall not be required to contribute any
amount in excess of the fees and commissions received by them and no person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7(d), any person who controls a party to this Agreement within the
meaning of the Securities Act will have the same rights to contribution as that
party, and each trustee of the Fund and each officer of the Fund who signed the
Registration Statement will have the same rights to contribution as the Fund,
subject in each case to the provisions hereof. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 7(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent shall not be unreasonably withheld). The Underwriter's
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Firm Shares set forth opposite their names in
Schedule 1 (or such number of Firm Shares as determined pursuant to Section 9
hereof) and not joint.
(e) Notwithstanding any other provisions in this Section 7, no
person shall be entitled to indemnification or contribution under this Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of such person's reckless disregard of
such person's obligations and duties hereunder.
(f) The Fund and the Investment Adviser acknowledge that the
statements with respect to (1) the sales load with respect to the sale of the
Shares as set forth on the cover page of the Prospectus and (2) the (i) list of
Underwriters and the number of Shares allocated to each, (ii) first two
sentences of the third paragraph, (iii) the sentence comprising the seventh
paragraph and (iv) the second sentence of the eighth paragraph, in each case
under the caption "Underwriting" in the Prospectus, constitute the only
information furnished in writing to the Fund by the Representatives on behalf of
the Underwriters expressly for use in such document. The Underwriters severally
confirm that these statements are correct in all material respects and were so
furnished by or on behalf of the Underwriters severally for use in the
Prospectus.
8. Termination. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first generally offered
pursuant to this Underwriting Agreement by the Managing Representative to
dealers by letter or telegram;
(b) at or before any Closing Date if, in the sole judgment of
the Managing Representative, payment for and delivery of any Shares is rendered
impracticable or inadvisable because (1) trading in the equity securities of the
Fund is suspended by the Commission or by the principal exchange that lists the
Shares, (2) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange or over-the-counter market, or, (3) additional material
governmental restrictions, not in force on the date of this Underwriting
Agreement, have been imposed upon trading in securities or trading has been
suspended on any U.S. securities exchange, (4) a general banking moratorium has
been established by U.S. federal or New York authorities or (5) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred the
effect of any of which is such as to make it, in the sole judgment of the
Managing Representative, impracticable or inadvisable to market the Shares on
the terms and in the manner contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
9. Substitution of Underwriters. If one or more of the Underwriters
fails to purchase on any Closing Date the Shares agreed to be purchased on such
Closing Date by such Underwriter or Underwriters and this Underwriting Agreement
has not been terminated, the Managing Representative may find one or more
substitute underwriters to purchase such Shares or make such other arrangements
as the Managing Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may be
approved by the Managing Representative, in each case upon the terms set forth
in this Underwriting Agreement. If no such arrangements have been made within
36 hours after such Closing Date, and
(a) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such Shares on the
terms set forth in this Underwriting Agreement in proportion to their respective
obligations under this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Fund will be entitled to an
additional period of 24 hours within which to find one or more substitute
underwriters reasonably satisfactory to the Managing Representative to purchase
such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Managing Representative or the Fund will
have the right to postpone the applicable Closing Date for not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or the
Prospectus) may be effected by the Managing Representative and the Fund. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters exceeds 10% of the Shares that the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Fund makes arrangements pursuant to this Section within the
period stated for the purchase of the Shares that the defaulting Underwriters
agreed to purchase, this Underwriting Agreement will terminate without liability
on the part of any nondefaulting Underwriter, the Fund or the Investment
Adviser, except as provided in Sections 5(g) and 7 hereof. This Section will
not affect the liability of any defaulting Underwriter to the Fund or the
nondefaulting Underwriters arising out of such default. A substitute
underwriter will become a Underwriter for all purposes of this Underwriting
Agreement.
10. Miscellaneous.
(a) The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations of the Fund,
the Investment Adviser and the Underwriters in this Underwriting Agreement will
remain in full force and effect regardless of any termination of this
Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Fund, the Investment Adviser and the Underwriters in this Underwriting
Agreement shall survive the Closing Dates and shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter,
the Fund, the Investment Adviser or any controlling person and delivery of and
payment for the Shares.
(b) This Underwriting Agreement is for the benefit of the
Underwriters, the Fund, the Investment Adviser and their successors and assigns,
and, to the extent expressed in this Underwriting Agreement, for the benefit of
persons controlling any of the Underwriters, the Fund, the Investment Adviser
and directors and officers of the Fund, the Investment Adviser, and their
respective successors and assigns, and no other person, partnership, association
or corporation will acquire or have any right under or by virtue of this
Underwriting Agreement. The term "successors and assigns" does not include any
purchaser of the Shares from any Underwriter merely because of such purchase.
(c) All notices and communications under this Underwriting
Agreement will be in writing, effective only on receipt and mailed or delivered,
by messenger, facsimile transmission or otherwise, to the Representatives in
care of PaineWebber Incorporated, Attn.: Financial Institutions Group, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the Fund or the Investment
Adviser at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn.: Chief Legal
Officer.
(d) This Underwriting Agreement may be signed in multiple
counterparts that taken as a whole constitute one agreement.
(e) This Underwriting Agreement will be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles thereof.
(f) A copy of the Agreement and Declaration of Trust of the Fund
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
hereby is given that this Underwriting Agreement is executed on behalf of the
Fund and that the obligations of the Fund arising out of this Underwriting
Agreement are not binding upon any of the Trustees or shareholders of the Fund
individually but are binding only upon the assets and properties of the Fund.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund and the Adviser and of the controlling persons,
directors and officers referred to in Section 7, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of Shares from any
of the several Underwriters.
All representations, warranties, and agreements of the Fund and the
Adviser contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of its
controlling persons and shall survive delivery of and payment for the Shares
hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Fund, the Adviser and the Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Managing Representative, the Fund and the Adviser.
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Investment Adviser and the several Underwriters.
Very truly yours,
Nuveen Senior Income Trust
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Nuveen Senior Loan Asset Management Inc.
By: /s/ Xxxx X. Berkshire
------------------------
Name: Xxxx X. Berkshire
Title: Vice President
Confirmed:
PaineWebber Incorporated
Xxxx Nuveen & Co. Incorporated
Deutsche Bank Securities Inc.
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
First Union Securities, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
As Representatives of the Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: PaineWebber Incorporated
By: /s/ Xxxx X. Reit Acting on behalf of itself and
-------------------- and the Underwriters named in Schedule 1
Name: Xxxx X. Reit
Title: Director
