Exhibit h.1
NUVEEN TAX-ADVANTAGED TOTAL RETURN STRATEGY FUND
FUNDPREFERRED SHARES
1,800 Shares, Series W
Liquidation Preference $25,000 Per Share
UNDERWRITING AGREEMENT
New York, New York
April __, 2004
Citigroup Global Markets Inc.
Nuveen Investments, LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nuveen Tax-Advantaged Total Return Strategy Fund, a Massachusetts
business trust (the "Fund") proposes to sell to you (the "Underwriters"), upon
the terms and conditions set forth herein, 1,800 FundPreferred Shares, Series W
(the "Series W Shares"), with a par value of $0.01 per share and a liquidation
preference of $25,000 per share (collectively, the "Securities"). The Securities
will be authorized by the Fund's Declaration of Trust and the Statement
Establishing and Fixing the Rights and Preferences of FundPreferred Shares (the
"Statement"), and subject to the terms and conditions of the Statement in the
form thereof filed as an appendix to the statement of additional information of
the registration statement referred to in Section 1(a) of this Underwriting
Agreement (the "Agreement"). Nuveen Institutional Advisory Corp., a Delaware
corporation (the "Investment Adviser"), is the Fund's investment adviser, and
each of NWQ Investment Management Company, LLC, a Delaware limited liability
company ("NWQ") and Symphony Asset Management, LLC, a California limited
liability company ("Symphony" and, together with NWQ, the "Subadvisers" and the
Subadvisers, together with the Investment Adviser, each an "Adviser" and
collectively the "Advisers") is a subadviser to the Fund.
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The Fund and the Advisers wish to confirm as follows their
agreements with the Underwriters in connection with the several purchases of the
Securities by the Underwriters.
The Fund has entered into an Investment Management Agreement with
the Investment Adviser dated as of November 30, 2003, a Custodian Agreement with
State Street Bank and Trust Company dated as of August 19, 2002, effective as of
September 25, 2003, and a Shareholder Transfer Agency and Service Agreement with
State Street Bank and Trust Company dated as of October 7, 2002, effective as of
September 25, 2003, and will enter into an Auction Agency Request and Acceptance
letter with The Bank of New York to be dated the Closing Date, incorporating the
Nuveen Auction Agency Agreement Basic Term For Acting as Auction Agent dated
August 22, 2002, and such agreements are herein referred to as the "Management
Agreement," the "Custodian Agreement," the "Transfer Agency Agreement" and the
"Auction Agency Agreement," respectively. The Investment Adviser has entered
into an investment sub-advisory agreement with NWQ dated as of November 20, 2003
and an investment sub-advisory agreement with Symphony dated as of November 20,
2003 and such agreements are herein referred to as the "NWQ Sub-Advisory
Agreement" and the "Symphony Sub-Advisory Agreement", respectively.
Collectively, (i) the Management Agreement, the Custodian Agreement, the
Transfer Agency Agreement and the Auction Agency Agreement are herein referred
to as the "Fund Agreements" and (ii) the NWQ Sub-Advisory Agreement and the
Symphony Sub-Advisory Agreement are herein referred to as the "Sub-Advisory
Agreements".
1. Representations and Warranties of the Fund and the Advisers. The
Fund, the Investment Adviser, NWQ and Symphony, jointly and severally, represent
and warrant to, and agree with, each Underwriter as set forth below in this
Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-114106 and 811-21471) on Form
N-2, including a related preliminary prospectus (including the statement
of additional information incorporated by reference therein), for
registration under the Act and the 1940 Act of the offering and sale of
the Securities. The Fund may have filed one or more amendments thereto,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), each of which
has previously been furnished to you. The Fund will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus (including the statement
of additional information incorporated by reference therein)) or (2) after
the Effective Date of such registration statement, a final prospectus
(including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of
clause (2), the Fund has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the 1940 Act and the Rules and
Regulations to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus
(including the statement of additional information incorporated by
reference therein) (in the case of clause (1) above), or such final
prospectus (including the statement of additional information incorporated
by reference therein) (in the case of clause (2) above), shall contain all
Rule 430A Information, together with all other such required information,
and, except to the extent the Underwriters shall agree in writing to a
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modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Fund has advised you, prior to the Execution Time, will
be included or made therein.
(b) Each Preliminary Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, complied when so filed in all material respects with the
provisions of the Act, the 1940 Act and the Rules and Regulations.
(c) 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 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 Act, the 1940
Act and the Rules and Regulations and did not or will not at any such
times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a the Prospectus, in the 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.
(d) All the outstanding common shares of beneficial interests, par
value $0.01 per share, of the Fund (the "Common Shares") have been duly
authorized and validly issued, are fully paid and nonassessable, except
that, as set forth in the Registration Statement, shareholders of a
Massachusetts business trust may under certain circumstances be held
personally liable for its obligations, and are free of any preemptive or
similar rights that entitle or will entitle any person to acquire any
securities upon issuance thereof by the Fund, except as stated above; the
Securities 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, except that, as set
forth in the Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held personally liable
for its obligations, and are free of any preemptive or similar rights that
entitle or will entitle any person to acquire any securities upon issuance
thereof by the Fund, except as stated above, and the shares of beneficial
interest of the Fund, including the Securities and the Common Shares,
conforms to the description thereof in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them).
(e) 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
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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.
(f) 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, whether or not arising from
transactions in the ordinary course of business, 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 by the Act, the 1940 Act or the Rules and Regulations.
(g) 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 Act, the 1940 Act or the Rules
and Regulations.
(h) The Fund is not in violation of the Statement, 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, including, without limitation, the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, or of any material decree of the Commission, the
National Association of Securities Dealers (the "NASD"), any state
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official having jurisdiction over the Fund or
in breach or default in any material respect in the performance of any
obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or in any 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.
(i) Neither the issuance and sale of the Securities, 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 (i) requires any consent, approval,
authorization or other order of or registration or filing which has not
yet been obtained or made 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 filing the Statement with the Secretary of State
of the Commonwealth of Massachusetts or conflicts or will conflict with or
constitutes or will constitute a breach of the Declaration of Trust or
By-Laws of the Fund
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or (ii) 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.
(j) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations of the Fund or
business prospects (other than as a result of a change in the financial
markets generally) of the Fund, whether or not arising in the ordinary
course of business, and (ii) 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).
(k) The accountants, Xxxxx & Young LLP, who have audited or shall
audit at or prior to the Closing Date the Statement of Assets and
Liabilities and the related Statement of Operations 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 Act, the 1940 Act and the Rules and Regulations.
(l) The financial statements, together with related schedules and
notes, included in the Registration Statement and 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 and
the Prospectus at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data
included in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(m) The Fund, subject to the Registration Statement having been
declared effective and, except for the filing of the Prospectus or a
certification under Rule 497 under the Act Rules and Regulations, has
taken all required action under the Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(n) 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 the Fund
Agreements constitute the valid and
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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.
(o) 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, that is material to the Fund and there has not been
any change in the shares of beneficial interest or material increase in
the short-term debt or long-term debt of the Fund.
(p) 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
Securities, will not distribute to the public in either printed or
electronic form any offering material in connection with the offering and
sale of the Securities other than the Registration Statement, the
Preliminary Prospectuses included in Pre-Effective Amendment No. 1 to the
Registration Statement and the Prospectus.
(q) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse
of time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto),
none of such permits contains any restriction that is materially
burdensome to the Fund.
(r) 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
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, 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.
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(s) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(t) 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 or the
Securities 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.
(u) The Fund is duly registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed
in all material respects with all applicable provisions of the 1940 Act
and the 1940 Act Rules and Regulations. The Fund has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration Statement (or any
amendment or supplement to either of them).
(v) The Fund has filed in a timely manner each document or report
required to be filed by it pursuant to the 1940 Act, the 1940 Act Rules
and Regulations, the Exchange Act and the rules and regulations of the
Commission promulgated thereunder; each such document or report at the
time it was filed conformed to the requirements of the 1940 Act, the 1940
Act Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, as the case may be,
and none of such documents or reports contained an untrue statement of any
material fact or omitted to state any 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.
(w) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Advisers for use in connection with the offering and sale of the
Securities (collectively, "sales material") complied and comply in all
material respects with the applicable requirements of the Act, the 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.
(x) 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").
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(y) No holder of any security of the Fund has any right to require
registration of the Securities or any other security of the Fund because
of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(z) The Fund has filed all tax returns required to be filed and the
Fund is not in material default in the payment of any taxes which were
shown as payable on said returns or any assessments with respect thereto.
(aa) The Fund intends to direct the investment of the proceeds of
the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(bb) The Fund's directors and officers errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940
Act Rules and Regulations are in full force and effect; the Fund is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Fund under any such policy or
fidelity bond as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Fund has not been
refused any insurance coverage sought or applied for; and the Fund has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Fund, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(cc) Except as disclosed in the Prospectus, no trustee of the Fund
is an "interested person" (as defined in the 1940 Act) of the Fund or an
"affiliated person" (as defined in the 1940 Act) of any Underwriter listed
in Schedule I hereto.
(dd) The form of certificate for each of the Series __ Shares, the
Series __ Shares and the Series __ Shares is in due and proper form and
complies with the requirements of all applicable laws.
(ee) The Common Shares are duly listed on the New York Stock
Exchange.
2. Representations, Warranties and Agreements of the Advisers. Each
of the Investment Adviser, NWQ and Symphony, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation, limited liability company or
limited liability partnership duly organized and validly existing in good
standing under the laws of its jurisdiction of incorporation or formation,
with full corporate, company or partnership 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
9
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 such
Adviser.
(b) Such Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Fund Agreements to
which it is a party for the Fund or the Sub-Advisory Agreements to which
it is a party as contemplated by the Registration Statement and the
Prospectus (or any amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the Sub-Advisory
Agreements to which it is a party, the execution and delivery of, and the
performance by such Adviser of its obligations under, this Agreement, the
Fund Agreements to which it is a party and the Sub-Advisory Agreements to
which it is a party have been duly and validly authorized by such Adviser;
and this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreements to which it is a party have been duly executed and
delivered by such Adviser and constitute the valid and legally binding
agreements of such Adviser, enforceable against such Adviser in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) and under this Agreement and the Fund
Agreements to which it is a party and the Sub-Advisory Agreements to which
it is a party.
(e) Such Adviser is not in violation of its certificate or articles
of incorporation, by-laws, certificate of formation, limited liability
company agreement, limited liability partnership agreement or other
organizational documents, as the case may be, or in violation of the
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith to which it is subject, in
default under any material agreement, indenture or instrument or in breach
or violation of any judgment, decree, order, rule or regulation of any
court or governmental or self-regulatory agency or body except where such
violation or breach would not have a material, adverse effect on the
condition (financial or other), business, prospects, properties, net
assets or results of operations of such Adviser or on the ability of the
such Adviser to perform its obligations under this Agreement, the Fund
Agreements to which it is a party or the Sub-Advisory Agreements to which
it is a party.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus (and any
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amendment or supplement thereto), in each case insofar as such information
is set forth in the Registration Statement or the Prospectus) complied and
comply in all material respects with the provisions of the 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.
(g) There are no legal or governmental proceedings pending or, to
the knowledge of such Adviser, threatened against such Adviser or to which
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
to either of them) but are not described as required or that reasonably
should be expected to result in any material, adverse change in the
condition (financial or other), business, properties, net assets or
results of operations of such Adviser or that reasonably should have a
material, adverse effect on the ability of such Adviser to fulfill its
obligations hereunder or under the Fund Agreements to which it is a party
or under the Sub-Advisory Agreements to which it is a party.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (i) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of such Adviser, whether or not arising from the ordinary course
of business and (ii) there have been no transactions entered into by such
Adviser which are material to such Adviser other than those in the
ordinary course of its business as described in the Prospectus.
(i) Such Adviser 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; such Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is a
party and the Sub-Advisory Agreements to which it is a party 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.
(k) Neither the execution, delivery or performance of this Agreement
or the Fund Agreements by such Adviser which is a party thereto or the
Sub-Advisory Agreements by such Adviser which is a party thereto, nor the
consummation by such Adviser of the transactions contemplated hereby or
thereby (A) requires any consent, approval, authorization or other order
of or registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
11
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except such as
may have been obtained or made prior to the date hereof) or conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, the certificate or articles of incorporation, by-laws,
certificate of formation, limited liability company agreement, limited
liability partnership agreement or other organizational documents of such
Adviser or (B) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any material agreement,
indenture, lease or other instrument to which such Adviser 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 such Adviser or any
of its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of such
Adviser pursuant to the terms of any agreement or instrument to which it
is a party or by which it may be bound or to which any of the property or
assets of such Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), such Adviser has not taken and nor
will it 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 or the Securities in violation of federal securities laws and such
Adviser is not aware of any such action taken or to be taken by any
affiliates of such Adviser.
(m) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site or
similar electronic means, in each case under its control or at its
direction, such Adviser 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.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $______ per
share, the amount of Series __ Shares, Series __ Shares and Series __ Shares set
forth opposite such Underwriter's name in Schedule I hereto (or such number of
Securities increased as set forth in Section 10 hereof).
4. Delivery and Payment. (a) Delivery of and payment for the
Securities shall be made at the office of Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00 A.M.,
New York City time, on ________, 2004 (the "Closing Date") or at such time as
Citigroup Global Markets Inc. shall designate.
(b) Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through Citigroup Global Markets Inc. of the purchase price
thereof to or upon the order of the
12
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless Citigroup Global Markets Inc. shall
otherwise instruct.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the
Investment Adviser, NWQ and Symphony, 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 Act before the offering of the
Securities 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 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 Act Rules and Regulations, the Fund will file a Prospectus including
such information pursuant to Rule 497(h) of the 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 Securities 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 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 Securities 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 or (ii) when the Prospectus has been timely filed pursuant to
Rule 497(c) or Rule 497(h) of the Act Rules and Regulations or the
certification permitted pursuant to Rule 497(j) of the Act Rules and
Regulations has been timely filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Preliminary 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 NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official of any order suspending the effectiveness of the Registration
Statement, prohibiting or suspending the use of the Prospectus, any
Preliminary Prospectus or any sales material (as defined above), of any
notice pursuant to Section 8(e) of the 1940 Act, of the suspension of
qualification of the Securities 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 Advisers, any affiliate
of the Fund or the Advisers or any representative or
13
attorney of the Fund or the Advisers 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 Preliminary Prospectus, any sales material (as defined
above) (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 Advisers or of the
happening of any event which makes any statement of a material fact made
in the Registration Statement, the Prospectus, any Preliminary Prospectus
or any sales material (as defined above) (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
Preliminary Prospectus or any sales materials (as defined above) (or any
amendment or supplement to any of the foregoing) in order to state a
material fact required by the 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 the 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 Preliminary Prospectus or any sales material (as defined
above) (or any amendment or supplement to any of the foregoing) to comply
with the 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 Preliminary
Prospectus or any sales material (as defined above) (or any amendment or
supplement to any of the foregoing) or suspending the qualification of the
Securities for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) 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 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
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
Preliminary Prospectus or any sales material (as defined above) (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
14
reports pursuant to the Exchange Act, without delivering a copy of such
information, documents or reports to you 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 Preliminary Prospectus.
The Fund consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the several Underwriters and by dealers, prior
to the date of the Prospectus, of each Preliminary 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
Act to be delivered in connection with sales of Securities 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 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Securities are offered by the several Underwriters and by all
dealers to whom Securities may be sold, both in connection with the
offering or sale of the Securities and for such period of time thereafter
as the Prospectus is required by law to be delivered in connection with
sales of Securities 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 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 Act,
the 1940 Act, the Rules and Regulations or any other federal law, rule or
regulation or any securities or Blue Sky laws, rules or regulations, 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 and to the extent consistent
with applicable law, 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
Securities 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 Securities, in any jurisdiction where it is not now so subject.
15
(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 Act and Rule 158 of the 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) 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: (i) the preparation, printing or reproduction,
filing (including, without limitation, the filing fees prescribed by the
Act, the 1940 Act and the Rules and Regulations) and distribution of the
Registration Statement (including exhibits thereto), the Prospectus, each
Preliminary Prospectus and the 1940 Act Notification and all amendments or
supplements to any of them, (ii) 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 Preliminary 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 Securities, (iii) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp taxes and transfer
agent and registrar fees payable in connection with the original issuance
and sale of such Securities, (iv) the registrations or qualifications of
the Securities for offer and sale under the securities or Blue Sky laws of
the several states as provided in Section 6(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), (v) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities, (vi) the fees
and expenses of the Fund's independent accountants, counsel for the Fund,
the transfer agent and the auction agent, (vii) 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
Preliminary 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 Securities, (viii) 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 Securities and (ix)
the fees of any Rating Agencies. Notwithstanding the foregoing, in the
event that the sale of the Securities is not consummated pursuant to
Section 3 hereof, the Advisers will pay the costs and expenses of the Fund
set forth above
16
in clauses (i) through (x) of this Section 6(k), and reimbursements of
Underwriter expenses in connection with the offering shall be made in
accordance with Section 8 hereof.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Securities 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 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 Act Rules and Regulations and will advise you of the
time and manner of such filing.
(n) Except as provided in this Agreement, neither the Fund nor the
Advisers will sell, contract to sell or otherwise dispose of or hedge, any
senior securities (as defined in the 1940 Act) of the Fund or any
securities convertible into or exercisable or exchangeable for senior
securities of the Fund or grant any options or warrants to purchase senior
securities of the Fund, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Citigroup Global Markets
Inc.
(o) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Advisers have taken, nor will any of them 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 any securities issued by the Fund to facilitate the sale or resale of
the Securities.
(p) The Fund will use its reasonable best efforts to cause the
Securities, prior to the Closing Date, to be assigned a rating of `Aaa' by
Xxxxx'x Investors Service, Inc. ("Moody's") and `AAA' by Standard & Poor's
Corporation, a division of the McGraw Hill Companies ("S&P," and together
with Moody's, the "Rating Agencies").
7. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase any Securities hereunder are subject
to the accuracy of and compliance with the representations, warranties and
agreements of and by the Fund and the Advisers 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; to the accuracy and completeness of all statements
made by the Fund, the Advisers or any of their officers in any certificate
delivered to the Underwriters 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 Securities 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 Act
17
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 Advisers 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.
(b) You shall have received on the Closing Date an opinion of
Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, P.C., special counsel for the Fund and
the Investment Adviser, dated the Closing Date and addressed to you, to
the effect that:
(i) The Fund (A) has been formed and is validly existing under
the Fund's Declaration of Trust and the laws of the Commonwealth of
Massachusetts as a voluntary association with transferable shares of
beneficial interest, commonly referred to as a "Massachusetts
business trust," (B) is in good standing with the Secretary of the
Commonwealth of Massachusetts, and (C) has full power and authority
as a business trust, to own, lease and operate its properties and to
conduct its business, in each case as described in the Registration
Statement and the Prospectus (and any amendment or supplement to
either of them through the date of the opinion);
(ii) The Securities have been duly authorized by the Fund for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, except that, as set
forth in the Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable for
its obligations, and are free of any statutory preemptive rights.
Except as set forth in the Declaration and the Statement, as of the
date hereof, there are no restrictions upon the transfer of any
Securities pursuant to the Declaration or By-Laws of the Fund or, to
the best knowledge of such counsel, any agreement or other
outstanding instrument to which the Fund is a party; and the
specimen share certificates comply as to form with all requirements
of Massachusetts law;
(iii) The description of the authorized shares of beneficial
interest of the Fund contained under the caption "Description of
Common Shares" in the Prospectus (or any amendment or supplement
thereto through the date of this opinion) conforms in all material
respects as to legal matters to the terms thereof contained in the
Fund's Declaration of Trust and Statement. The statements in the
first two paragraphs under the caption "Certain Provisions in the
Declaration of Trust" in the Prospectus, to the extent that they
constitute descriptions of Massachusetts law, are in summary form
accurate in all material respects. The description of the Securities
contained under the captions "Description of FundPreferred Shares"
and "The Auction" in the Prospectus (or any amendment or supplement
thereto through the date of this opinion) conforms in all material
respects as to legal matters to the terms thereof contained in the
Fund's Declaration and Statement;
18
(iv) All of the outstanding common shares of the Fund have
been duly authorized by the Fund and are validly issued, fully paid
and nonassessable, except that, as set forth in the Registration
Statement, shareholders of a Massachusetts business trust may under
certain circumstances be held liable for its obligations, and are
free of any statutory preemptive rights;
(v) The Registration Statement is effective under the 1933 Act
and was filed under the 1940 Act; any required filing of the
Prospectus pursuant to Rule 497 of the 1933 Act Rules and
Regulations has been made within the time periods required by Rule
497; no stop-order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act has been
issued and to the best of such counsel's knowledge, no proceeding
for any such purpose has been instituted or is pending or threatened
in writing by the Commission;
(vi) The Fund's 1940 Act Notification, the Registration
Statement and the Prospectus and each amendment or supplement to the
Registration Statement and the Prospectus as of their respective
issue dates (except the financial statements and other financial
data contained therein, as to which we express no opinion) complies
as to form in all material respects with the requirements of the
1933 Act, the 1940 Act and the Rules and Regulations;
(vii) The statements made in the Prospectus (or any amendment
or supplement thereto through the date of this opinion) under the
captions "The Auction," "Description of FundPreferred Shares" and
"Additional Information Concerning Auctions for FundPreferred
Shares," insofar as they purport to summarize the provisions of the
Statement or other documents or agreements specifically referred to
therein, constitute accurate summaries of the terms of the
Declaration of Trust or such other documents, in all material
respects;
(viii) The statements made in the Prospectus (or any amendment
or supplement thereto through the date of this opinion) under the
captions "Prospectus Summary -- Federal Income Taxes" and "Federal
Income Tax Matters," insofar as they constitute matters of law or
legal conclusions, have been reviewed by such counsel and constitute
accurate statements of any such matters of law or legal conclusions,
and fairly present the information called for with respect thereto
by Form N-2, in all material respects;
(ix) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened in writing
against the Fund, or to which the Fund or any of its properties is
subject, that are required to be described in the Registration
Statement or the Prospectus, but are not described therein as
required;
(x) This Agreement and the Fund Agreements have each been duly
and validly authorized, executed and delivered by the Fund, each
complies with all applicable provisions of the 1940 Act and the 1940
Act Rules and Regulations
19
and the Advisers Act and the rules and regulations thereunder, and
each of the Fund Agreements constitutes the valid and binding
agreement of the Fund, enforceable against the Fund in accordance
with its terms;
(xi) The Fund is registered under the 1940 Act as a closed-end
diversified management investment company; the provisions of the
Declaration of Trust, Statement and By-Laws of the Fund and the
investment policies and restrictions described in the Prospectus do
not violate the requirements of the 1940 Act in any material
respect;
(xii) None of the issuance and sale of the Securities by the
Fund pursuant to this Agreement, the execution and delivery of this
Agreement or any of the Fund Agreements by the Fund, or the
performance by the Fund of its agreements under this Agreement or
any of the Fund Agreements (A) requires any consent, approval,
authorization or other order of or registration or filing with, the
Commission, the National Association of Securities Dealers, Inc., or
any national securities exchange or governmental body or agency or,
arbitrator or court of the United States of America, State of
Illinois or the Commonwealth of Massachusetts (except (1) the
absence of which, either individually or in the aggregate, would not
have a material adverse effect on the Fund; (2) such as may have
been obtained prior to the date hereof; and (3) such as may be
required for compliance with the New York Stock Exchange or state
securities or Blue Sky laws of various jurisdictions in accordance
with this Agreement) or violates or will violate or constitutes or
will constitute a breach of any of the provisions of the Declaration
of Trust, Statement, By-Laws or other organizational documents of
the Fund or (B) conflicts with, violates or will violate or
constitutes or will constitute a breach of, or a default under, any
material agreement, indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument known to such counsel
to which the Fund is party or by which it or any of its properties
may be bound, or violates any existing material United States of
America, State of Illinois or the Commonwealth of Massachusetts
statute, law, regulation (assuming compliance with all applicable
state securities and Blue Sky laws), or judgment, injunction, order
or decree known to us and 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 known
to such counsel to which the Fund is a party or by which it or any
of its property or assets is bound. To the best of such counsel's
knowledge, the Fund is not subject to any order of any court or of
any arbitrator, governmental authority or administrative agency of
the United States of America, the State of Illinois or the
Commonwealth of Massachusetts;
(xiii) No holder of any security of the Fund has any right
pursuant to any agreement known to such counsel to which the Fund is
a party to require registration of shares of beneficial interest,
the Securities or any other security of the Fund because of the
filing of the Registration Statement or consummation of the
transactions contemplated by this Agreement; and
20
(xiv) To the best of such counsel's knowledge, there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus, or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the 1933
Act, the 1940 Act or the Rules and Regulations.
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 and the
Prospectus (and any amendment or supplement thereto), 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, 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 the 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,
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, or omitted from, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto)).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper and to
the extent specified in such opinion, such counsel may rely, as to matters
involving the application of laws of The Commonwealth of Massachusetts,
upon the opinion of Xxxxxxx XxXxxxxxx LLP or other counsel of good
standing whom they believe to be reliable and who are satisfactory to the
Underwriters; 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 Underwriters and is, in form and substance, satisfactory to them and
their counsel and (Y) Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, P.C. states in
their opinion that they believe that they and the Underwriters are
justified in relying thereon. References to the Prospectus in this
paragraph (b) shall also include any supplements thereto at the Closing
Date.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxxxxx, Managing Director, Assistant Secretary and General
Counsel for the Investment Adviser, dated the Closing Date and addressed
to you, to the effect that:
(i) The Investment Adviser 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 thereto) and is duly registered and qualified
21
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 Investment
Adviser;
(ii) The Investment Adviser 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 and each of the Sub-Advisory Agreements as
contemplated by the Prospectus (and any amendment or supplement
thereto);
(iii) The Investment Adviser has corporate power and authority
to enter into this Agreement, the Management Agreement and each of
the Sub-Advisory Agreements and this Agreement, the Management
Agreement and each of the Sub-Advisory Agreements have been duly and
validly authorized, executed and delivered by the Investment Adviser
and each of the Management Agreement and the Sub-Advisory Agreements
is a valid, legal and binding agreement of the Investment Adviser,
enforceable against the Investment Adviser in accordance with its
terms, subject to the qualification that the enforceability of the
Investment Adviser's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory
Agreements 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 Investment
Adviser of this Agreement, the Management Agreement or any of the
Sub-Advisory Agreements nor the consummation by the Investment
Adviser 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 Investment Adviser or
any material agreement, indenture, lease or other instrument to
which the Investment Adviser 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 Investment Adviser, 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 Investment Adviser and its
business in the Prospectus (and any amendment or supplement thereto)
complies in all material
22
respects with all requirements of the 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 Investment Adviser or to which the Investment
Adviser or any of its property is subject which are required to be
described in the Registration Statement or Prospectus (or any
amendment or supplement thereto);
(viii) The Investment Adviser owns, possesses or has obtained
and currently maintains all material governmental licenses, permits,
consents, orders, approvals and other authorizations as are
necessary for the Investment Adviser 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 Investment Adviser for the performance
of this Agreement, the Management Agreement or the Sub-Advisory
Agreements by the Investment Adviser or for the consummation by the
Investment Adviser 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 and the
Prospectus (and any amendment or supplement thereto), 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 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, 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
the 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, 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, or omitted
from, the Registration Statement or the Prospectus (or any amendment or
supplement thereto)).
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
23
dated the Closing Date, of other counsel retained by the Investment
Adviser 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
Underwriters, (Y) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the
Underwriters and is, in form and substance, satisfactory to them and their
counsel and (Z) counsel shall state in his view that he believes that he
and the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of Xxxx
Xxxxxxxxx, special counsel for NWQ, dated the Closing Date and addressed
to you, to the effect that:
(i) NWQ is a limited liability company duly formed and validly
existing in good standing under the laws of the State of Delaware
with full company 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) 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 NWQ;
(ii) NWQ 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 promulgated
by the Commission under such acts from acting for the Fund under the
NWQ Sub-Advisory Agreement as contemplated by the Prospectus (and
any amendment or supplement thereto);
(iii) NWQ has limited liability company power and authority to
enter into this Agreement and the NWQ Sub-Advisory Agreement and
this Agreement and the NWQ Sub-Advisory Agreement have been duly
authorized, executed and delivered by NWQ and the NWQ Sub-Advisory
Agreement is a valid, legal and binding agreement of NWQ,
enforceable against NWQ in accordance with its terms, subject to the
qualification that the enforceability of NWQ's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(iv) The NWQ Sub-Advisory 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 NWQ of this
Agreement or the NWQ Sub-Advisory Agreement nor the consummation by
NWQ of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Formation or limited liability
24
company agreement of NWQ or any material agreement, indenture, lease
or other instrument to which NWQ 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 NWQ, 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 NWQ or any of its properties;
(vi) The description of NWQ and its business in the Prospectus
(and any amendment or supplement thereto) complies in all material
respects with all requirements of the 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 NWQ or to which NWQ or any of its property is
subject that are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto);
(viii) NWQ owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for NWQ 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 NWQ for the performance of this Agreement or
the NWQ Sub-Advisory Agreement by NWQ or for the consummation by NWQ
of the transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in her opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), 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 her attention that has caused her 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, 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
the 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, 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
25
misleading (it being understood that such counsel need express no opinion
with respect to (a) the financial statements and the notes thereto and the
schedules and other financial and statistical data included in, or omitted
from, the Registration Statement or the Prospectus (or any amendment or
supplement thereto).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of 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 NWQ as
to laws of any jurisdiction other than the United States, the State of
California and the Delaware General Corporation Law Statute, provided that
(X) each such local counsel is acceptable to the Underwriters, (Y) such
reliance is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Underwriters 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.
(e) You shall have received on the Closing Date an opinion of Xxxx
X. Xxxxxxxxx, special counsel for Symphony, dated the Closing Date and
addressed to you, to the effect that:
(i) Symphony is a limited liability company duly formed and
validly existing in good standing under the laws of the State of
California with full limited liability company 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). Symphony has the limited
liability company power to enter into this Agreement and the
Symphony Sub-Advisory Agreement
(ii) Symphony 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 Symphony;
(iii) Symphony 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
promulgated by the Commission under such acts from acting for the
Fund under the Symphony Sub-Advisory Agreement as contemplated by
the Prospectus (and any amendment or supplement thereto);
(iv) This Agreement and the Symphony Sub-Advisory Agreement
have been duly authorized, executed and delivered by Symphony and
the Symphony Sub-Advisory Agreement is a valid, legal and binding
agreement of Symphony, enforceable against Symphony in accordance
with its terms, subject to the qualification that the enforceability
of Symphony's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
26
relating to or affecting creditors' rights generally and by general
equitable principles;
(v) The Symphony Sub-Advisory 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;
(vi) Neither the execution and delivery by Symphony of this
Agreement or the Symphony Sub-Advisory Agreement nor the
consummation by Symphony of the transactions contemplated hereunder
or thereunder constitutes or will constitute a breach of or a
default under the articles of organization or limited liability
company operating agreement of Symphony or any material agreement,
indenture, lease or other instrument to which Symphony 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 Symphony, 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 Symphony or any of
its properties;
(vii) The description of Symphony and its business in the
Prospectus (and any amendment or supplement thereto) complies in all
material respects with all requirements of the Act, the 1940 Act and
the Rules and Regulations;
(viii) 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 Symphony or to which Symphony or any of its
property is subject that are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto);
(ix) Symphony owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for Symphony to
carry on its business as contemplated in the Prospectus (and any
amendment or supplement thereto); and
(x) 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 Symphony for the performance of this
Agreement or the Symphony Sub-Advisory Agreement by Symphony or for
the consummation by Symphony 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
27
Statement and the Prospectus (and any amendment or supplement thereto),
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 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, 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 the 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, 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, or omitted from, the Registration Statement or the Prospectus
(or any amendment or supplement thereto)).
In rendering such opinion, counsel may limit such opinion to matters
involving the application of the laws of the United States and may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by Symphony as to laws of any jurisdiction other than the United
States, provided that (X) each such local counsel is acceptable to the
Underwriters, (Y) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the
Underwriters 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.
(f) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, dated the Closing Date and addressed to you, with respect to
the issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may require and the Fund, the Advisers 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.
(g) That you shall have received letters addressed to you 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.
(h) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus or any
sales material shall have been issued and no proceedings for such purpose
or for the purpose of commencing an enforcement action against the Fund,
the Advisers or, with respect to the transactions contemplated by the
Prospectus (or any amendment or supplement thereto) and this Agreement,
any Underwriter, may be pending before or, to the knowledge of the Fund,
the Advisers or any Underwriter 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
28
any request for additional information on the part of the Commission (to
be included in the Registration Statement, the Prospectus or otherwise) be
complied with to the satisfaction of the Underwriters, (ii) there shall
not have been any change in the capital stock of the Fund nor any material
increase in debt (other than in the ordinary course of business) 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 Advisers; (iv) the Fund and the Advisers 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 thereto); and (v) all of the
representations and warranties of the Fund and the Advisers contained in
this Agreement shall be true and correct on and as of the date hereof and
as of the Closing Date as if made on and as of the Closing Date.
(i) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other),
business, prospects, properties, net assets or results of operations of
the Fund or the Advisers not contemplated by the Prospectus (and any
amendment or supplement thereto), which in your opinion would materially
and adversely affect the market for the Securities or (ii) any event or
development relating to or involving the Fund, the Advisers or any officer
or trustee or director of the Fund or the Advisers which makes any
statement of a material fact made in the Prospectus (or any amendment or
supplement thereto) untrue or which, 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 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, materially and adversely affect the market for the Securities.
(j) That neither the Fund nor the Advisers shall have failed at or
prior to the Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with
by them at or prior to the Closing Date.
(k) That you shall have received on the Closing Date a certificate,
dated such date, of the president, any managing director or any vice
president and of the controller, treasurer or assistant treasurer of each
of the Fund, the Investment Adviser and each of the Subadvisers certifying
that (i) the signers have carefully examined the Registration Statement,
the Prospectus (and any amendments or supplements thereto) and this
Agreement (with respect to the certificates of such officers of the Fund,
the Investment Adviser, NWQ and Symphony), (ii) the representations and
warranties of the Fund (with
29
respect to the certificates from such Fund officers) and the
representations of the Advisers (with respect to the certificates from
such officers of the Advisers) in this Agreement are true and correct on
and as of the date of the certificate as if made on such date, (iii) since
the date of the Prospectus (and any amendment or supplement thereto) there
has not been any material, adverse change in the condition (financial or
other), business, prospects (other than as a result of a change in the
financial markets generally), properties, net assets or results of
operations of the Fund (with respect to the certificates from such Fund
officers) or the Advisers (with respect to the certificates from such
officers of the Advisers), (iv) with respect to the certificates from such
Fund officers and the certificates from such officers of the Investment
Adviser, NWQ and Symphony, 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 Securities or
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 court or other regulatory body, the NASD, any state
securities commission, any national securities exchange, any arbitrator 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 Advisers (with respect to certificates
from such officers of the Advisers) has performed and complied in all
material respects with all agreements that this Agreement requires it to
perform by such Closing Date, (vi) neither the Fund (with respect to the
certificate from such officers of the Fund) nor the Advisers (with respect
to the certificate from such officers of the Advisers) 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 thereto 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).
(l) The Fund shall have furnished to you as soon as practicable from
the Closing Date a report showing compliance with the asset coverage
requirements of the 1940 Act and a FundPreferred Shares Basic Maintenance
Certificate (as defined in the Statement), each dated the Closing Date and
in form and substance satisfactory to you.
(m) The Fund shall have delivered and the Underwriters shall have
received evidence satisfactory to the Underwriters that each series of
Securities is rated `Aaa' by Xxxxx'x and `AAA' by S&P, as of the Closing
Date, and there shall have not been given any notice of any intended or
potential downgrading, or of any review for a potential downgrading, in
the rating accorded to the shares of each series of Securities by any
Rating Agency.
(n) That the Fund and the Advisers 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
Advisers).
30
(o) That the Fund shall have duly filed the Statement with the
Secretary of State of the Commonwealth of Massachusetts.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Advisers and delivered to you or to Underwriters' counsel shall be deemed
a representation and warranty by such party to each Underwriter as to the
statements made therein.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Fund or the
Advisers to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Fund will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund, the Investment
Adviser, NWQ and Symphony, jointly and severally, agree to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several (including reasonable costs of investigation),
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus, any Preliminary Prospectus, any Preliminary Prospectus, any sales
material (or any amendment or supplement to any of the foregoing), or arise out
of or are based upon the 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 the Prospectus, any Preliminary Prospectus or any sales
material (or any amendment or supplement to any of the foregoing), in light of
the circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Fund will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Fund by or on behalf of any Underwriter specifically for inclusion therein;
provided, further, that the foregoing indemnity with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus (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 or
31
liability purchased Securities, 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 or liability was not sent or delivered to such person
by or on behalf of such Underwriter, if required by law to be so delivered to,
at or prior to the confirmation of the sale of such Securities to such person
and such Prospectus, amendments and supplements have been provided by the Fund
to the Underwriters in the requisite quantity and on a timely basis to permit
proper delivery. This indemnity agreement will be in addition to any liability
which the Fund, the Investment Adviser, NWQ or Symphony may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Fund and the Advisers, each of its directors, trustees,
each of its officers who signs the Registration Statement, and each person who
controls the Fund or the Advisers within the meaning of the Act or the Exchange
Act, to the same extent as the indemnity from the Fund, the Investment Adviser,
NWQ and Symphony to each Underwriter as set forth in Section 9(a) hereof, but
only with respect to written information relating to such Underwriter furnished
to the Fund by or on behalf of such Underwriter specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Fund and the Advisers acknowledge that the names of the underwriters and
numbers of Securities listed opposite such names in the first paragraph under
the caption "Underwriting" in the Prospectus, as well as, under the same
caption, the ninth paragraph, constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of
32
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then the Fund, the Advisers and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Advisers and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Advisers on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Fund, the
Advisers and the Underwriters severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Fund and the Advisers on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Fund and the Advisers shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by the Fund and
the Advisers, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Fund or the Advisers on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Fund, the Advisers and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (f), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Fund or the Advisers within the meaning of either the Act or the Exchange
Act, each officer of the Fund and the Advisers who shall have signed the
Registration Statement and each director of the Fund and the Advisers shall have
the same rights to contribution as the Fund and the Advisers, subject in each
case to the applicable terms and conditions of this paragraph (f). The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to the respective aggregate number of Securities set forth
opposite their names in Schedule I (or such numbers of Securities increased as
set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the
33
indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution agreements
contained in this Section 9 and the representations and warranties of the Fund
and the Advisers 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
Advisers or their shareholders, trustees, directors, managers, members or
officers or any person controlling the Fund or the Advisers (control to be
determined within the meaning of the Act or the Exchange Act), (ii) acceptance
of any Securities and payment therefor hereunder and (iii) any termination of
this Agreement. A successor to any Underwriter or to the Fund, the Advisers or
their shareholders, trustees, directors, managers, members or officers or any
person controlling any Underwriter, the Fund or the Advisers shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the aggregate amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters or in such other proportion as you may specify in accordance with
the Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Fund. In the event of a default by any Underwriter as set forth in this
Section 10 which does not result in a termination of this Agreement, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. 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 Securities which a defaulting Underwriter
agreed, but failed or refused, to purchase.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of Citigroup Global Markets Inc., without liability on
the part of the Underwriters to the Fund or the Advisers, by notice given to the
Fund or the Advisers prior to delivery of and payment for the Securities, if at
any time prior to such time (i) trading in the Fund's Common Shares shall have
been suspended by the Commission or the NYSE or trading in securities generally
on the NYSE shall have been suspended or limited or minimum prices shall have
been established on the NYSE, (ii) a commercial banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any
34
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of Citigroup
Global Markets Inc., impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto). Notice of such termination may be given to the Fund or the
Advisers by telegram, facsimile or telephone and shall be subsequently confirmed
by letter.
12. Representations and Indemnities to Survive. The provisions of
Sections 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Miscellaneous. Except as otherwise provided in Sections 6, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (a) if to the Fund or the Investment Advisor,
c/o Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxxxx, (b) if to NWQ, at the offices of NWQ Investment
Management Company, LLC at 0000 Xxxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx, (c) if to Symphony, at the offices of
Symphony Asset Management, LLC at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention: Xxxx X. Xxxxxxx or (d) if to the Underwriters, at the office of
Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund, the Advisers, their trustees, directors and
officers and the other controlling persons referred to in Section 9 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
Securities 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 the Fund under 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.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
35
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A, as the
1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any preliminary
prospectus (including the statement of additional information incorporated
by reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
36
"Prospectus" shall mean the prospectus and any amendment or
supplement thereto (including the statement of additional information
incorporated by reference therein) relating to the Securities that is
first filed pursuant to Rule 497 after the Execution Time or, if no filing
pursuant to Rule 497 is required, shall mean the form of final prospectus
(including the statement of additional information incorporated by
reference therein) relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN TAX-ADVANTAGED TOTAL RETURN
STRATEGY FUND
By:
------------------------------
Name:
Title:
NUVEEN INSTITUTIONAL ADVISORY CORP.
By:
------------------------------
Name:
Title:
NWQ INVESTMENT MANAGEMENT COMPANY, LLC
By:
------------------------------
Name:
Title:
SYMPHONY ASSET MANAGEMENT, LLC
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
--------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF SERIES
UNDERWRITERS W SHARES
------------ ---------
Citigroup Global Markets Inc.
Nuveen Investments, LLC.....
X.X. Xxxxxxx & Sons, Inc....
Wachovia Capital Markets, LLC
---------
TOTAL........... 1,800
