EXHIBIT 99.h.1
FRANKLIN XXXXXXXXX LIMITED DURATION INCOME TRUST
_____ COMMON SHARES OF BENEFICIAL INTEREST
[FORM OF] UNDERWRITING AGREEMENT
New York, New York
__, 2003
Citigroup Global Markets Inc.
[Other Underwriters]
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Franklin Xxxxxxxxx Limited Duration Income Trust, a
Delaware statutory trust (the "Fund") and Franklin Advisers, Inc., a California
corporation (the "Adviser"), address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters _____ shares (the "Firm Securities") of its
common shares of beneficial interest (the "Common Shares"). The Fund also
proposes to sell to the Underwriters, upon the terms and conditions set forth
herein, up to an additional _____ Common Shares (the "Option Securities") to
cover over-allotments. The Firm Securities and the Option Securities are
hereinafter collectively referred to as the "Securities." Unless otherwise
stated, the term "you" as used herein means Citigroup Global Markets Inc.
individually on its own behalf and on behalf of the other Representatives.
Certain terms used herein are defined in Section 18 hereof.
The Fund and the Adviser wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
The Fund has entered into an Investment Management Agreement with the
Adviser dated as of _____, 200_, a Custodian Agreement with _____ dated as of
_____, 200_, and a Shareholder Transfer Agency and Service Agreement with _____
dated as of _____, 200_,
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and such agreements are herein referred to as the "Management Agreement," the
"Custodian Agreement" and the "Transfer Agency Agreement," respectively. The
Adviser has also entered into an Additional Compensation Agreement, dated as of
July __, 2003 (the "Additional Compensation Agreement"). Collectively, the
Management Agreement, the Custodian Agreement and the Transfer Agency Agreement
are herein referred to as the "Fund Agreements." In addition, the Fund has
adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant
to which holders of Common Shares shall have their dividends automatically
reinvested in additional Common Shares of the Fund unless they elect to receive
such dividends in cash.
1. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE ADVISER. The
Fund and the Adviser, 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 333-105495 and 811-21357) 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), or such final prospectus (including the
statement of additional information incorporated by reference therein),
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall
agree in writing to a 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 and Prospectus complied when filed
with the Commission in all material respects with the provisions of the
Act, the 1940 Act and the Rules and Regulations, except that this
representation and warranty does not apply to statements in or omissions
from the Registration Statement, the Preliminary Prospectus or the
Prospectus 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
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you expressly for use therein. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus.
(c) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
497 and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will, and
the 1940 Act Notification when originally filed with the Commission and any
amendment or supplement thereto when filed with the Commission did or will,
comply in all material respects with the applicable requirements of the
Act, the 1940 Act and the Rules and Regulations and the Registration
Statement did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on
the Effective Date, the Prospectus, if not filed pursuant to Rule 497, will
not, and on the date of any filing pursuant to Rule 497 and on the Closing
Date and any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Fund makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Fund by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
(d) The Fund has been duly formed and is validly existing in good
standing as a statutory trust under the laws of the State of Delaware, with
full power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification. The Fund has
no subsidiaries.
(e) The Fund's authorized equity capitalization is as set forth in the
Prospectus; the capital stock of the Fund conforms in all material respects
to the description thereof contained in the Prospectus; all outstanding
Common Shares have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly listed, and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the American Stock Exchange (the "AMEX");
the certificates for the Securities are in valid and sufficient form; the
holders of outstanding Common Shares are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or ownership interests in the Fund are outstanding.
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(f) The Fund's registration statement on Form 8-A under the Exchange
Act has become effective.
(g) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497, 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.
(h) 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 thereto, which are not
described or filed as required; and the statements in the Prospectus under
the heading "Tax Matters" and "Anti-Takeover and Other Provisions in the
Declaration of Trust" fairly summarize the matters therein described.
(i) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(j) 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. 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.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Fund Agreements, except such as
have been made or obtained under the Act and the 1940 Act and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus.
(l) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (i) conflicts or will conflict with or constitutes or
will constitute a breach of the declaration of trust or by-laws of the
Fund, (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 (iii) violates or will
violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Fund or any of its properties
or
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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.
(m) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(n) The financial statements, together with related schedules and
notes, included in the Prospectus and the Registration Statement present
fairly in all material respects the financial condition, results of
operations and cash flows of the Fund as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of
the Act and the 1940 Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein); and
the other financial and statistical information and data included in the
Registration Statement or the Prospectus are accurately derived from such
financial statements and the books and records of the Fund.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Fund
or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be expected
to 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).
(p) The Fund owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(q) The Fund is not (i) in violation of its declaration of trust or
by-laws, (ii) in breach or default in the performance of the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject or
(iii) in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Fund or of any decree of the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official having
jurisdiction over the Fund.
(r) Since the date as of which information is given in the Prospectus,
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, (ii) there
have been no transactions entered into by the Fund which are material to
the Fund other than those
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in the ordinary course of its business as described in the Prospectus and
(iii) there has been no dividend or distribution of any kind declared, paid
or made by the Fund on any class of its Common Shares.
(s) Except as disclosed in or contemplated by the Prospectus,
subsequent to the date as of which such information is given in the
Prospectus, the Fund has not incurred any material liability or material
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Fund, and there
has not been any change in the capitalization, or material increase in the
short-term debt or long-term debt, of the Fund, or any material adverse
change, or any development involving or which may reasonably be expected to
involve, a prospective material adverse change, in the condition (financial
or other), assets or results of operations of the Fund, whether or not
arising in the ordinary course of business (other than as a result of
changes in market conditions generally or the market for securities
generally).
(t) [PricewaterhouseCoopers LLP], who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Fund within the meaning of the Act and the Act Rules and
Regulations.
(u) 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 any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or other materials
permitted by the Act, the 1940 Act or the Rules and Regulations.
(v) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Fund or sale by the Fund of the
Securities.
(w) The Fund has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file 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)) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as 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).
(x) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"),
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whether in printed or electronic form, authorized in writing by or prepared
by the Fund or the Adviser 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
provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
for filing. No sales material contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(y) 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).
(z) 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; 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, except as
described in the Prospectus, none of such permits contains any restriction
that is materially burdensome to the Fund.
(aa) 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 objectives, 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
accountability for
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assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(cc) Neither the Fund nor, to the knowledge of the Fund, any trustee,
officer, agent, employee or affiliate of the Fund is aware of or has taken
any action, directly or indirectly, that would result in a violation by
such persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official"
(as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Fund, and, to the knowledge of the Fund,
its affiliates have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
(dd) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(ee) Except as disclosed in the Prospectus, no trustee of the Fund is
an "interested person" (as defined in the 0000 Xxx) of the Fund or an
"affiliated person" (as defined in the 0000 Xxx) of any Underwriter listed
in Schedule I hereto.
(ff) 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.
(gg) 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.
(hh) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global Markets
Holdings Inc. and (ii) does not intend to use any of the proceeds from the
sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of Citigroup Global Markets Holdings Inc.
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(ii) There is and has been no failure on the part of the Fund and any
of the Fund's trustees or officers, in their capacities as such, to comply
with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act"),
including Sections 302 and 906 related to certifications.
(jj) The operations of the Fund are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting
requirements of The Bank Secrecy Act of 1970, as amended (including
amendments pursuant to the International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001), the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the "Money Laundering Laws") and
no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Fund with respect
to the Money Laundering Laws is pending or, to the best knowledge of the
Fund, threatened.
(kk) Neither the Fund nor, to the knowledge of the Fund, any trustee,
officer, agent, employee or affiliate of the Fund is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC"); and the Fund will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any other person or entity, for
the purpose of financing the activities of any person currently subject to
any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Fund and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Fund, as
to matters covered thereby, to each Underwriter.
2. REPRESENTATIONS AND WARRANTIES OF THE ADVISER. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser has been duly formed and is validly existing in good
standing as a corporation under the laws of the State of California, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification.
(b) The Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Fund Agreements to which it is a party for the Fund
or the Additional Compensation Agreement as contemplated by the Prospectus.
(c) The Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the Additional
Compensation Agreement, the
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execution and delivery of, and the performance by the Adviser of its
obligations under, this Agreement, the Fund Agreements to which it is a
party and the Additional Compensation Agreement have been duly and validly
authorized by the Adviser; and this Agreement, the Fund Agreements to which
it is a party and the Additional Compensation Agreement have been duly
executed and delivered by the Adviser and constitute the valid and legally
binding agreements of the Adviser, enforceable against the 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 the 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) The Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Prospectus and under this Agreement, the Fund Agreements to which it is a
party and the Additional Compensation Agreement.
(e) The description of the Adviser and its business, and the
statements attributable to the Adviser, in 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 necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property is pending or, to the best knowledge of the
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of the Adviser to fulfill its
obligations hereunder or under the Fund Agreements to which it is a party
or the Additional Compensation Agreement or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Adviser,
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); and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or 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.
(g) Since the date as of which information is given in the Prospectus,
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 the Adviser,
whether or not arising from the ordinary course of business and (ii) there
have been no transactions entered into by the Adviser which are material to
the Adviser other than those in the ordinary course of its business as
described in the Prospectus.
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(h) The 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; the 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 the Adviser under any such permit.
(i) This Agreement, the Fund Agreements to which the Adviser is a
party and the Additional Compensation Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Fund Agreements by the Adviser
or the Additional Compensation Agreement, except such as have been made or
obtained under the Act and the 1940 Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement
or any of the Fund Agreements to which the Adviser is a party and the
Additional Compensation Agreement, nor the consummation by the Fund or the
Adviser of the transactions contemplated hereby or thereby (i) conflicts or
will conflict with or constitutes or will constitute a breach of the
charter or by-laws of the Adviser, (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 Adviser is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the 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 the Adviser
pursuant to the terms of any agreement or instrument to which the Adviser
is a party or by which the Adviser may be bound or to which any of the
property or assets of the Adviser is subject.
(l) Except as stated in this Agreement and in the Prospectus, the
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 any security of the Fund in violation of federal securities laws
and the Adviser is not aware of any such action taken or to be taken by any
of its affiliates.
(m) In the event that the Fund or the 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, the Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
12
materials by persons other than qualified broker-dealers and registered
representatives thereof.
3. PURCHASE AND SALE. (a) 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 the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____ Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 3(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on August __,
2003 or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Fund or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). 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 the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Fund will deliver the
Option Securities (at the expense of the Fund) to the Representatives, at 000
Xxxxxxxxx Xx., Xxx Xxxx, Xxx Xxxx on the date specified by the Representatives
(which shall be within three Business Days after exercise of said option) for
the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Fund by wire transfer payable in same-day funds to
an account specified by the Fund. If settlement for the Option Securities occurs
after the Closing Date, the Fund will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
13
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 7 hereof.
5. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. AGREEMENTS OF THE FUND AND THE ADVISER. The Fund and the Adviser,
jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Fund will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Fund has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 497, the
Fund will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the
Commission pursuant to Rule 497 within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing.
The Fund will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 497 or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Fund of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Fund
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which, in the judgment of the Fund or in the reasonable opinion of counsel
for the Underwriters, the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act, the 1940 Act and the Rules and Regulations, the Fund promptly
will (1) notify the Representatives
14
of any such event; (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 6, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Fund will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Fund which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Fund will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; 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
that 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.
(f) The Fund will not, without the prior written consent of Citigroup
Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Fund or any affiliate of the Fund or any person in
privity with the Fund), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other Common Shares or any
securities convertible into, or exercisable, or exchangeable for, Common
Shares; or publicly announce an intention to effect any such transaction
for a period of 180 days following the Execution Time, PROVIDED, HOWEVER,
that the Fund may issue and sell Common Shares pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan of
the Fund in effect at the Execution Time and the Fund may issue Common
Shares issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
(g) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the Fund's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Xxxxxxxx-Xxxxx Act.
15
(h) The Fund and the Adviser will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund to
facilitate the sale or resale of the Securities.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus and the 1940 Act Notification and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus, any sales material and all amendments or supplements to any of
them, as may, in each case, 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 or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum,
dealer agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the AMEX; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (vii) any filings required to be made
with the National Association of Securities Dealers, Inc. (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the fees
and expenses of the Fund's accountants and the fees and expenses of counsel
(including local and special counsel) for the Fund; (x) all other costs and
expenses incident to the performance by the Fund of its obligations
hereunder; and (xi) $_____ for partial reimbursement of certain Underwriter
expenses.
(j) 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.
(k) The Fund will comply with the requirements of Subchapter M of the
Code to qualify as a regulated investment company under the Code.
(l) The Fund and the Adviser will use their reasonable best efforts to
perform all of the agreements required of them by this Agreement and
discharge all conditions of theirs to closing as set forth in this
Agreement.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund
16
and the Adviser contained herein as of the Execution Time, the Closing Date and
any settlement date pursuant to Section 4 hereof, to the accuracy of the
statements of the Fund made in any certificates pursuant to the provisions
hereof, to the performance by the Fund or the Adviser of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 497, the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 497; and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Fund shall have requested and caused Paul, Hastings, Xxxxxxxx
& Xxxxxx LLP, counsel for the Fund, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Fund has been duly formed and is validly existing in
good standing as a statutory trust under the laws of the State of
Delaware, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification; and that the Fund has no subsidiaries;
(ii) The Fund's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Fund conforms in all
material respects to the description thereof contained in the
Prospectus; all outstanding Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution,
on the AMEX; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding Common Shares are not
entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in
the Fund are outstanding;
(iii) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency,
17
authority or body or any arbitrator involving the Fund or its property
of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus, and there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required by the Act, the 1940 Act or the Rules
and Regulations; and the statements included in the Prospectus under
the headings "Tax Matters" and "Anti-Takeover and Other Provisions in
the Declaration of Trust" insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings;
(iv) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 497 have been made in the manner and within
the time period required by Rule 497; to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Act Rules and Regulations; and such counsel has no reason to believe
that on the Effective Date or the date the Registration Statement was
last deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date and on
the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than
the financial statements and other financial and statistical
information contained therein, as to which such counsel need express
no opinion);
(v) The execution and delivery of and the performance by the
Fund of its obligations under this Agreement and the Fund Agreements
have been duly and validly authorized by the Fund and this Agreement
and the Fund Agreements have been duly executed and delivered by the
Fund and constitute the valid and legally binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations
thereunder 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;
(vi) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, diversified management investment company
and all action has
18
been taken by the Fund as required by the Act and the 1940 Act and the
Rules and Regulations in connection with the issuance and sale of the
Securities to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement; the Fund Agreements
comply in all material respects with all applicable provisions of the
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations; and 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;
(vii) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act and the 1940
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this
Agreement and in the Prospectus and such other approvals (specified in
such opinion) as have been obtained;
(viii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby or the adoption of the
Fund's Dividend Reinvestment Plan (i) conflicts or will conflict with
or constitutes or will constitute a breach of the declaration of trust
or by-laws of the Fund, (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 (iii) violates or will 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; and
(ix) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Prospectus in this
paragraph (b) shall also include any supplements thereto at the Closing
Date.
19
(c) You shall have received on the Closing Date an opinion of Xxxxxx
X. Xxxxxxx, Esq., counsel for the Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Adviser has been duly formed and is validly existing
in good standing as a corporation under the laws of the State of
California, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
(ii) The Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Fund Agreements to which it is a
party for the Fund or the Additional Compensation Agreement as
contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into
this Agreement, the Fund Agreements to which it is a party and the
Additional Compensation Agreement; and this Agreement, the Fund
Agreements to which it is a party and the Additional Compensation
Agreement have been duly authorized, executed and delivered by the
Adviser and this Agreement, the Fund Agreements to which the Adviser
is a party and the Additional Compensation Agreement are each a valid
and legally binding agreement of the Adviser, enforceable against the
Adviser in accordance with its terms except as rights to indemnity and
contribution hereunder and thereunder may be limited by Federal or
state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Adviser's obligations
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable
principles whether enforcement is considered in a proceeding in equity
or at law;
(iv) This Agreement, the Fund Agreements to which the Adviser
is a party and the Additional Compensation Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Advisers Act and the Advisers Act
Rules and Regulations;
(v) Neither the execution, delivery or performance of this
Agreement, the Fund Agreements to which the Adviser is a party or the
Additional Compensation Agreement, nor the consummation by the Adviser
of the transactions contemplated hereby and thereby (A) conflicts or
will conflict with, or constitutes or will constitute a breach of or
default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Adviser or (B) conflicts or will
conflict with, or constitutes or will constitute a material breach of
or material default under any material agreement, indenture, lease or
other instrument to which the Adviser is a party, or will result in
the creation or
20
imposition of any material lien, charge or encumbrance upon any
material property or material assets of the Adviser, nor will any such
action result in any material violation of any law of the State of New
York, the Delaware General Corporation Law, the 1940 Act, the Advisers
Act or any regulation or judgment, injunction, order or decree
applicable to the Adviser or any of its properties;
(vi) The description of the Adviser and its business in the
Prospectus 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,
there are no actions, suits or other legal or governmental proceedings
pending or threatened against the Adviser or to which the Adviser or
any of its property is subject which are required to be described in
the Prospectus;
(viii) The Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary for it to carry on
its business as contemplated in the Prospectus;
(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 Adviser for the performance of this
Agreement, the Fund Agreements or the Additional Compensation
Agreement by the Adviser or for the consummation by the Adviser of the
transactions contemplated hereby or thereby; and
(x) Such counsel shall also state that he has no reason to
believe that on the Effective Date or the date the Registration
Statement was last deemed amended the Registration Statement contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of its
date and on the Closing Date included or includes any untrue statement
of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of California or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Fund and public
21
officials. References to the Prospectus in this paragraph (c) shall also
include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, 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 Representatives may reasonably require, and the Fund and the Adviser
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Fund shall have furnished to the Representatives a certificate
of the Fund, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of each of the Fund and the
Adviser, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The representations and warranties of the Fund and the
Adviser in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date and
the Fund and the Adviser have complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Fund's or the Adviser's
knowledge, threatened; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Fund
or the Adviser, 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).
(f) The Fund shall have requested and caused [name of accountants] to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and as
of the Closing Date, in form and substance heretofore approved by the
Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 7 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Fund and the Adviser, whether or not arising from
transactions in the ordinary course of
22
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(h) The Securities shall have been listed and admitted and authorized
for trading on the AMEX, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(i) Prior to the Closing Date, the Fund and the Adviser shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Fund in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing
Date.
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,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Adviser 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 and the Adviser,
jointly and severally, agree to indemnify and hold harmless each of you and each
other 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 sales material (or any amendment or
supplement
23
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 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 through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Fund may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Fund and the Adviser, each of its trustees, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Adviser within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Fund and the Adviser to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Fund by or on behalf of such Underwriter through
the Representatives 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 Adviser
acknowledge that the statements set forth in the last paragraph of the cover
page regarding delivery of the Securities and, under the heading "Underwriting,"
(i) the list of Underwriters and their respective participation in the sale of
the Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering transactions
and penalty bids in any Preliminary Prospectus and the Prospectus 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
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
24
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
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Adviser and the Underwriters
severally agree to 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 Adviser 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 Adviser on the one hand (treated jointly for this purpose as one
person) 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 Adviser 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 Adviser on the one hand (treated jointly for this purpose as one person)
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 Adviser (treated jointly
for this purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, 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 and the Adviser on the one hand
(treated jointly for this purpose as one person) 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 Adviser 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 (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to
25
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 Adviser within the meaning of either the Act or the Exchange Act,
each officer of the Fund and the Adviser who shall have signed the Registration
Statement and each director of the Fund and the Adviser shall have the same
rights to contribution as the Fund and the Adviser, subject in each case to the
applicable terms and conditions of this paragraph (d). The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective number of Firm Securities set forth opposite their names in
Schedule I (or such numbers of Firm Securities increased as set forth in Section
10 hereof) and not joint.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability from claimants on claims that are the
subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Adviser set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Fund, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (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 Adviser or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Adviser 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 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
26
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, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives 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 Firm 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 the Representatives, without liability on the part
of the Underwriters to the Fund or the Adviser, by notice given to the Fund
or the Adviser 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 AMEX or trading in securities
generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on either of the exchanges, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such
as to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Fund and the Adviser or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Fund or the
Adviser or any of the officers, trustees, employees, agents or controlling
persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Fund or the Adviser, will be mailed,
delivered or telefaxed to Franklin Advisers, Inc. (fax no.: (xxx) xxx-xxxx) and
confirmed to it at Xxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000,
attention of the Legal Department.
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.
27
15. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within 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.
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, and the rules
and regulations of the Commission promulgated thereunder.
"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.
28
"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.
"Prospectus" shall mean the prospectus (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 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"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.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
29
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 Adviser and the several Underwriters.
Very truly yours,
FRANKLIN XXXXXXXXX LIMITED
DURATION INCOME TRUST
By:
------------------------
Name:
Title:
FRANKLIN ADVISERS, INC.
By:
------------------------
Name:
Title:
30
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 UNDERWRITTEN
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ----------------------
Citigroup Global Markets Inc.
-----------
Total
-----------
