_________ SHARES
NUVEEN INSURED CALIFORNIA TAX-FREE ADVANTAGE MUNICIPAL FUND
COMMON STOCK
UNDERWRITING AGREEMENT
November __, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Xxxxxxx, Xxxxxx & Co.
Xxxxxxx Xxxxx & Associates, Inc.
RBC Xxxx Xxxxxxxx, Inc.
Wachovia Securities, Inc.
Wedbush Xxxxxx Securities Inc.
As Representatives of the Several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Nuveen Insured California Tax-Free Advantage
Municipal Fund, a Massachusetts business trust (the "Fund"), and Nuveen Advisory
Corp., a Delaware corporation (the "Manager"), address you as Underwriters and
as the representatives (the "Representatives") of each of the other persons,
firms and corporations, if any, listed in Schedule I hereto (herein collectively
called "Underwriters"). The Fund proposes to issue and sell an aggregate of
_______ shares (the "Firm Shares") of its common shares of beneficial interest,
$.01 par value per share (the "Common Shares"), to the several Underwriters. The
Fund also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 2 hereof, up to an additional _______ Common Shares (the
"Additional Shares"). The Firm Shares and Additional Shares are hereinafter
collectively referred to as the "Shares".
The Fund and the Manager wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Shares by the Underwriters.
The Fund is entering into an investment management agreement with the
Manager dated _______, 2002, a master custodian agreement with State Street Bank
and Trust Company dated _______, 2002 and a transfer agency and service
agreement with State Street Bank and Trust Company dated _______, 2002 and such
agreements are herein referred to as the "Management Agreement", the "Custodian
Agreement" and the "Transfer Agency Agreement", respectively. Collectively, the
Management Agreement, the Custodian Agreement and the Transfer Agency Agreement
are herein referred to as the "Fund Agreements". This Underwriting Agreement is
herein referred to as the "Agreement".
1. Registration Statement and Prospectus.The Fund has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), the Investment Company Act of 1940, as amended (the "1940 Act"),
and the rules and regulations of the Commission under the 1933 Act (the "1933
Act Rules and Regulations") and the 1940 Act (the "1940 Act Rules and
Regulations" and together with the 1933 Act Rules and Regulations, the "Rules
and Regulations") a registration statement on Form N-2 (File Nos. 333-100323 and
811-21212) under the 1933 Act and the 1940 Act and may pursuant to the Rules and
Regulations prepare and file an additional registration statement relating to a
portion of the Shares pursuant to Rule 462(b) of the 1933 Act Rules and
Regulations (a "462(b) Registration Statement") (collectively, the "registration
statement"), including a prospectus (including any statement of additional
information) relating to the Shares and a notification of registration of the
Fund as an investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or, if
the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective prior to the execution of this Agreement, and includes any information
deemed to be included by Rule 430A under the 1933 Act Rules and Regulations. If
it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed under the
1933 Act and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. For the
avoidance of doubt, if the Fund has filed a 462(b) Registration Statement, the
term "Registration Statement" as used in this Agreement shall include such
462(b) Registration Statement. The term "Prospectus" as used in this Agreement
means the prospectus (including the statement of additional information) in the
form included in the Registration Statement or, if the prospectus (including the
statement of additional information) included in the Registration Statement
omits information in reliance on Rule 430A and such information is included in a
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the
term "Prospectus" as used in this Agreement means the prospectus (including the
statement of additional information) in the form included in the Registration
Statement as supplemented by the addition of the information contained in the
prospectus (including the statement of additional information) filed with the
Commission pursuant to Rule 497(h). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus (including the statement of additional
information) subject to completion in the form included in the registration
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statement at the time of the initial filing of the registration statement with
the Commission and as such prospectus (including the statement of additional
information) shall have been amended from time to time prior to the date of the
Prospectus, together with any other prospectus (including any other statement of
additional information) relating to the Fund other than the Prospectus.
The Fund has furnished the Representatives with copies of such
registration statement, each amendment to such registration statement filed with
the Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees, subject
to all the terms and conditions set forth herein, to issue and to sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Manager herein contained and subject to all of
the other terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Fund at a purchase price per
share of $14.325 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof).
The Fund also agrees, subject to all the terms and conditions set
forth herein, to issue and to sell to the Underwriters and, upon the basis of
the representations, warranties and agreements of the Fund and the Manager
herein contained and subject to all the terms and conditions set forth herein,
the Underwriters shall have the right to purchase from the Fund, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 45th day after the date of the Prospectus (or if such 45th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading) up
to an aggregate of _______ Additional Shares. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
upon the basis of the representations, warranties and agreements of the Fund and
the Manager herein contained and subject to all of the other terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Fund the number of Additional Shares (subject to such
adjustments as you may determine to avoid fractional shares) which bears the
same proportion to the number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I (or such number of Firm Shares increased as set forth
in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering.The Fund and the Manager have been
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Firm Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable and
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
4. Delivery of Shares and Payments Therefor.
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(a) Delivery to the Underwriters of and payment to the Fund for the
Firm Shares shall be made at the office of Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00
A.M., New York City time, on November __, 2002 (the "Closing Date"). The
place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Fund.
(b) Delivery to the Underwriters of and payment to the Fund for any
Additional Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Xxxxxxx Xxxxx Barney Inc., or through the
facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may
be the same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than two nor later than three business days after
the giving of the notice hereinafter referred to, as shall be specified in
a written notice from you on behalf of the Underwriters to the Fund of the
Underwriters' determination to purchase a number, specified in said notice,
of Additional Shares. The place of closing for any Additional Shares and
the Option Closing Date for such Additional Shares may be varied by
agreement between you and the Fund.
(c) Certificates for the Firm Shares and for any Additional Shares
shall be registered in such names and in such denominations as you shall
request prior to 1:00 P.M., New York City time, (i) in respect of the Firm
Shares, on the second business day preceding the Closing Date and (ii) in
respect of Additional Shares, on the day of the giving of the written
notice in respect of such Additional Shares. Such certificates will be made
available to you in New York City for inspection and packaging not later
than 9:00 A.M., New York City time, on the business day next preceding the
Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, through the facilities of the
Depository Trust Company or another mutually agreeable facility, against
payment of the purchase price therefor in immediately available funds to
the order of the Fund.
5. Agreements of the Fund and the Manager. The Fund and the Manager,
jointly and severally, agree with the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective under the 1933 Act before the offering of
the Firm Shares may commence, the Fund will use its reasonable best efforts
to cause the Registration Statement or such post-effective amendment to
become effective under the 1933 Act as soon as possible. If the
Registration Statement has become effective and the Prospectus contained
therein omits certain information at the time of effectiveness pursuant to
Rule 430A of the 1933 Act Rules and Regulations, the Fund will file a
Prospectus including such information pursuant to Rule 497(h) of the 1933
Act Rules and Regulations, as promptly as practicable, but no later than
the second business day following the earlier of the date of
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the determination of the offering price of the Shares or the date the
Prospectus is first used after the effective date of the Registration
Statement. If the Registration Statement has become effective and the
Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497 (c) or (j) of the 1933 Act
Rules and Regulations as promptly as practicable, but no later than the
fifth business day following the date of the later of the effective date of
the Registration Statement or the commencement of the public offering of
the Shares after the effective date of the Registration Statement. The Fund
will advise you promptly and, if requested by you, will confirm such advice
in writing (i) when the Registration Statement or such post-effective
amendment has become effective, (ii) when the Prospectus has been timely
filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and
Regulations or the certification permitted pursuant to Rule 497(j) of the
1933 Act Rules and Regulations has been timely filed, whichever is
applicable.
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission
for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus (or any amendment or supplement to
any of the foregoing) or for additional information, (ii) of the issuance
by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD"), any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement, prohibiting or
suspending the use of the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined), of any notice pursuant to Section
8(e) of the 1940 Act, of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplated
initiation of any proceeding for any such purposes, (iii) of receipt by the
Fund, the Manager, any affiliate of the Fund or the Manager or any
representative or attorney of the Fund or the Manager of any other material
communication from the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official relating to the Fund (if such communication relating
to the Fund is received by such person within three years after the date of
this Agreement), the Registration Statement, the 1940 Act Notification, the
Prospectus, any Prepricing Prospectus, any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing), this
Agreement or any of the Fund Agreements and (iv) within the period of time
referred to in paragraph (f) below, of any material adverse change in the
condition (financial or other), business, prospects, properties, net assets
or results of operations of the Fund or the Manager or of the happening of
any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to
any of the foregoing) untrue or which requires the making of any additions
to or changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
5
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or of the
necessity to amend or supplement the Registration Statement, the
Prospectus, any Prepricing Prospectus or any sales material (as hereinafter
defined) (or any amendment or supplement to any of the foregoing) to comply
with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law
or order of any court or regulatory body. If at any time the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue any
order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Prepricing
Prospectus or any sales material (as hereinafter defined) (or any amendment
or supplement to any of the foregoing) or suspending the qualification of
the Shares for offering or sale in any jurisdiction, the Fund will use its
reasonable best efforts to obtain the withdrawal of such order at the
earliest possible time.
(c) The Fund will furnish to you, without charge, three signed copies
of the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto (except any post-effective
amendment required by Rule 8b-16 of the 1940 Act Rules and Regulations
which is filed with the Commission after the later of (x) one year from the
date of this Agreement and (y) the date on which the distribution of the
Shares is completed) and will also furnish to you, without charge, such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act Rules and Regulations which is filed
with the Commission after the later of (x) one year from the date of this
Agreement and (y) the date on which the distribution of the Shares is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Prepricing Prospectus or any sales material (as hereinafter defined) (or
any amendment or supplement to any of the foregoing) of which you shall not
previously have been advised or to which you shall reasonably object within
a reasonable time after being so advised or (ii) so long as, in the opinion
of counsel for the Underwriters, a Prospectus is required to be delivered
in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Fund
has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of any Prepricing Prospectus. The
Fund consents to the use, in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers,
6
prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales of Shares by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus (and of
any amendments or supplements thereto) in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering or
sale of the Shares and for such period of time thereafter as the Prospectus
is required by law to be delivered in connection with sales of Shares by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or if it is necessary to supplement or amend the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other law, rule or regulation, the Fund will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to the Underwriters and dealers, without charge, such
number of copies thereof as they shall reasonably request. In the event
that the Prospectus is to be amended or supplemented, the Fund, if
requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Fund be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Shares,
in any jurisdiction where it is not now so subject.
(h) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
7
(i) The Fund will comply with the undertaking set forth in paragraph 6
of Item 33 of Part C of the Registration Statement.
(j) During the period of five years hereafter, the Fund will furnish
to you (i) as soon as available, a copy of each report of the Fund mailed
to shareholders or filed with the Commission and (ii) from time to time
such other information concerning the Fund as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (other than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Fund or the Manager to comply with the terms or
fulfill any of the conditions of this Agreement, the Fund and the Manager,
jointly and severally, agree to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith, but the Fund and the
Manager shall in no event be liable for any internal cost of the
Underwriters or any loss of anticipated profits or speculative,
consequential or similar damages for such termination.
(l) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus.
(m) The Fund will file the requisite copies of the Prospectus with the
Commission in a timely fashion pursuant to Rule 497(c) or Rule 497(h) of
the 1933 Act Rules and Regulations, whichever is applicable or, if
applicable, will file in a timely fashion the certification permitted by
Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of
the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund in effect on the date hereof, the Fund will
not sell, contract to sell or otherwise dispose of, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares or grant any options or warrants to purchase Common Shares, for a
period of 180 days after the date of the Prospectus, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(o) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Manager has taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares.
(p) The Fund will use its reasonable best efforts to have the Common
Shares listed, subject to notice of issuance, on the American Stock
Exchange (the "AMEX") concurrently with the effectiveness of the
Registration Statement and to comply with the rules and regulations of such
exchange.
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6. Representations and Warranties of the Fund and the Manager. The Fund
and the Manager, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto complied when so filed in all material respects with the provisions
of the 1933 Act, the 1940 Act and the Rules and Regulations.
(b) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus
and any amendment or supplement thereto when filed with the Commission
under Rule 497 of the 1933 Act Rules and Regulations and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission complied or will comply
in all material respects with the provisions of the 1933 Act, the 1940 Act
and the Rules and Regulations and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the circumstances under
which they were made) not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described in
the Registration Statement, nonassessable and are free of any preemptive or
similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and, except as
described in the Registration Statement, nonassessable and free of any
preemptive or similar rights and the capital stock of the Fund conforms to
the description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(d) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) and is duly registered and qualified to conduct business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify does
not have a material, adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of the Fund. The
Fund has no subsidiaries.
9
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required by the 1933 Act, the 1940
Act or the Rules and Regulations and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations.
(f) The Fund is not in violation of its Declaration of Trust or
By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or
of any material decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund or in breach or
default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement nor any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions contemplated
hereby or thereby (A) requires any consent, approval, authorization or
other order of or registration or filing which has not yet been obtained or
made with the Commission, the NASD, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official (except compliance
with the securities or Blue Sky laws of various jurisdictions which have
been or will be effected in accordance with this Agreement and except for
compliance with the filing requirements of the NASD Division of Corporate
Finance) or conflicts or will conflict with or constitutes or will
constitute a breach of the Declaration of Trust or By-Laws of the Fund or
(B) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of its
properties may be bound or materially violates or will materially violate
any material statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Fund or any of its properties or will
result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Fund is subject.
(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition
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(financial or other), business, properties, net assets or results of
operations of the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund, whether or not
arising in the ordinary course of business, (B) there have been no
transactions entered into by the Fund which are material to the Fund other
than those in the ordinary course of its business as described in the
Prospectus (and any amendment or supplement thereto) and (C) there has been
no dividend or distribution of any kind declared, paid or made by the Fund
on any class of its common stock.
(i) The accountants, Ernst & Young LLP, who have audited or shall
audit the Statement of Net Assets included in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them), are
an independent public accounting firm as required by the 1933 Act, the 1940
Act and the Rules and Regulations.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them) present fairly the financial
position of the Fund on the basis stated in the Registration Statement and
the Prospectus at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as disclosed
therein; and the other financial and statistical information and data
included in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) are accurately derived from such financial
statements and the books and records of the Fund.
(k) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933
Act, the 1940 Act and the Rules and Regulations to make the public offering
and consummate the sale of the Shares as contemplated by this Agreement.
(l) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(m) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent, that is material to the Fund and there has not been
any
11
change in the capital stock or material increase in the short-term debt or
long-term debt of the Fund.
(n) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date or (ii) completion of the distribution of the Shares,
will not distribute to the public in either printed or electronic form any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prepricing Prospectus included
in Pre-Effective Amendment No. 1 to the Registration Statement, the
Prospectus and the advertisements/sales literature filed by Nuveen
Investments with the NASD on _______, 2002.
(o) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus (and any amendment or supplement thereto); the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows or, after notice or lapse of
time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any amendment or supplement thereto); and, except as
described in the Prospectus (and any amendment or supplement thereto), none
of such permits contains any restriction that is materially burdensome to
the Fund.
(p) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and the applicable requirements of the 1940 Act, the 1940 Act
Rules and Regulations and the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
account for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(q) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(r) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Fund has not taken and will not take,
directly or indirectly, any action designed to or which should reasonably
be expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Common Shares in violation of federal
securities laws and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
12
(s) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing thereof
and at the time of filing any amendment or supplement thereto, conformed in
all material respects with all applicable provisions of the 1940 Act and
the 1940 Act Rules and Regulations. The Fund has not received any notice
from the Commission pursuant to Section 8(e) of the 1940 Act with respect
to the 1940 Act Notification or the Registration Statement (or any
amendment or supplement to either of them).
(t) All advertising, sales literature or other promotional material
(including "prospectus wrappers" and "broker kits"), whether in printed or
electronic form, authorized in writing by or prepared by the Fund or the
Manager for use in connection with the offering and sale of the Shares
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Rules and Regulations and the rules and interpretations of the NASD and if
required to be filed with the NASD under the NASD's conduct rules were so
filed. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(u) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Investment Advisers Act of 1940, as amended
(the "Advisers Act") and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules and
Regulations").
(v) No holder of any security of the Fund has any right to require
registration of Common Shares or any other security of the Fund because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(w) The Shares have been duly approved for listing upon notice of
issuance on the AMEX and the Fund's registration statement on Form 8-A,
under the 1934 Act, has become effective.
(x) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements
of Subchapter M of the Code.
7. Representations and Warranties of the Manager. The Manager represents
and warrants to each Underwriter as follows:
(a) The Manager is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing
13
in each jurisdiction or place where the nature of its properties or conduct
of its business requires such registration or qualification, except where
the failure so to register or to qualify would not have a material, adverse
effect on the condition (financial or other), business, properties, net
assets or results of operations of the Manager.
(b) The Manager is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Management Agreement for the Fund as contemplated by
the Registration Statement and the Prospectus (or any amendment or
supplement thereto).
(c) The Manager has full power and authority to enter into this
Agreement and the Management Agreement, the execution and delivery of, and
the performance by the Manager of its obligations under, this Agreement and
the Management Agreement have been duly and validly authorized by the
Manager and this Agreement and the Management Agreement have been duly
executed and delivered by the Manager and constitute the valid and legally
binding agreements of the Manager, enforceable against the Manager in
accordance with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of the Manager's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) The Manager has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Registration Statement, the Prospectus (or any amendment or supplement
thereto) and under this Agreement and the Management Agreement.
(e) The description of the Manager and its business, and the
statements attributable to the Manager, in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) complied and
comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Manager, threatened against the Manager or to which any of
its properties is subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) but are not described as required or that reasonably should
be expected to result in any material, adverse change in the condition
(financial or other), business, properties, net assets or results of
operations of the Manager or that reasonably should be expected to have a
material, adverse effect on
14
the ability of the Manager to fulfill its obligations hereunder or under
the Management Agreement.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), except as otherwise stated therein, (A) there has been
no material, adverse change in the condition (financial or other),
business, properties, net assets or results of operations or business
prospects of the Manager, whether or not arising from the ordinary course
of business and (B) there have been no transactions entered into by the
Manager which are material to the Manager other than those in the ordinary
course of its business as described in the Prospectus.
(h) The Manager has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Manager has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Manager under any such permit.
(i) This Agreement and the Management Agreement comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules
and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) Neither the execution, delivery or performance of this Agreement
or the Management Agreement by the Manager, nor the consummation by the
Manager of the transactions contemplated hereby or thereby (A) requires any
consent, approval, authorization or other order of or registration or
filing with the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official (except compliance with the securities or Blue Sky laws of various
jurisdictions which have been or will be effected in accordance with this
Agreement and except for compliance with the filing requirements of the
NASD Division of Corporate Finance) or conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, the
Certificate of Incorporation or By-Laws of the Manager or (B) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other instrument
to which the Manager is a party or by which it or any of its properties may
be bound or materially violates or will materially violate any material
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Manager or any of its properties or will result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Manager pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which
any of the property or assets of the Manager is subject.
15
(k) Except as stated in this Agreement and in the Prospectus (and in
any amendment or supplement thereto), the Manager has not taken and will
not take, directly or indirectly, any action designed to or which should
reasonably be expected to cause or result in or which will constitute,
stabilization or manipulation of the price of the Common Shares in
violation of federal securities laws and the Manager is not aware of any
such action taken or to be taken by any affiliates of the Manager.
(l) In the event that the Fund or the Manager makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, the Manager will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
8. Indemnification and Contribution.
(a) The Fund and the Manager, jointly and severally, agree to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and
all losses, claims, damages, liabilities and expenses, joint or several
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Prepricing
Prospectus, any sales material (or any amendment or supplement to any of
the foregoing) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Underwriters furnished in writing to the Fund by or on behalf of
any Underwriter through you expressly for use in connection therewith;
provided, however, that the foregoing indemnity with respect to the
Registration Statement, the Prospectus or any Prepricing Prospectuses (or
any amendment or supplement to any of the foregoing) shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Shares, if it is shown that a copy
of the Prospectus, as then amended or supplemented, which would have cured
any defect giving rise to such loss, claim, damage, liability or expense
was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered, at or prior to the
confirmation of the sale of such Shares to such person and such Prospectus,
amendments and supplements had been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit
proper delivery. The foregoing indemnity agreement shall be in addition to
any liability which the Fund or the Manager may otherwise have.
16
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Fund or the Manager, such Underwriter
or such controlling person shall promptly notify the Fund or the Manager
and the Fund or the Manager shall assume the defense thereof, including the
employment of counsel and the payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i) the
Fund or the Manager have agreed in writing to pay such fees and expenses,
(ii) the Fund and the Manager have failed within a reasonable time to
assume the defense and employ counsel or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Fund or the
Manager and such Underwriter or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Manager by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Manager shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Underwriter or such controlling person). It
is understood, however, that the Fund and the Manager shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances be liable for
the reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel if there is any action, suit or proceeding in
more than one jurisdiction) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests with
you or among themselves, which firm shall be designated in writing by
Xxxxxxx Xxxxx Xxxxxx Inc. and that, subject to the requirements of 1940 Act
Release No. 11330, all such fees and expenses shall be reimbursed promptly
as they are incurred. The Fund and the Manager shall not be liable for any
settlement of any such action, suit or proceeding effected without the
written consent of the Fund or the Manager, but if settled with such
written consent or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Fund and the Manager agree to
indemnify and hold harmless any Underwriter, to the extent provided in the
preceding paragraph, and any such controlling person from and against any
loss, liability, damage or expense by reason by such settlement or
judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Fund and the Manager, their trustees, directors, any
officers of the Fund who sign the Registration Statement and any person who
controls the Fund or the Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Manager to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus (or any
amendment
17
or supplement to any of the foregoing). If any action, suit or proceeding
shall be brought against the Fund or the Manager, any of their trustees,
directors, any such officer or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus (or any
amendment or supplement to any of the foregoing) and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to the Fund
and the Manager by paragraph (b) above (except that if the Fund or the
Manager shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter's expense) and the Fund and the
Manager, their trustees, directors, any such officer and any such
controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Fund and
the Manager on the one hand (treated jointly for this purpose as one
person) and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the Manager
on the one hand (treated jointly for this purpose as one person) and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Fund as set forth in the table on the cover page of the
Prospectus bear to the total payments received by the Underwriters with
respect to the Firm Shares as set forth in the table on the cover page of
the Prospectus. The relative fault of the Fund and the Manager on the one
hand (treated jointly for this purpose as one person) and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Fund and the Manager on the one hand
(treated jointly for this purpose as one person) or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Fund, the Manager and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata
18
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Firm Shares set forth opposite their names in Schedule
I (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Fund and the Manager set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the Manager or their
trustees, directors or officers or any person controlling the Fund or the
Manager, (ii) acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any Underwriter or
to the Fund, the Manager or their trustees, directors or officers or any
person controlling any Underwriter, the Fund or the Manager shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations.The several obligations of the
Underwriters to purchase any Shares hereunder are subject to, in the good faith
judgment of the Underwriters, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the Manager
contained herein on and as of the date hereof, the date on which the
Registration Statement becomes or became effective, the date of the Prospectus
(and of any
19
amendment or supplement thereto), the Closing Date and, with respect to any
Additional Shares, any Option Closing Date; to the accuracy and completeness of
all statements made by the Fund, the Manager or any of their officers in any
certificate delivered to the Representatives or their counsel pursuant to this
Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 p.m., New York City time, on the
date hereof or at such later date and time as shall be consented to in
writing by you and all filings, if any, required by Rules 497 and 430A
under the 1933 Act Rules and Regulations shall have been timely made; no
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Fund, the Manager or any Underwriter,
threatened by the Commission and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) You shall have received on the Closing Date an opinion of Xxxx,
Xxxx & Xxxxx LLC, special counsel for the Fund and Manager, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Fund is a business trust duly established, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto through the date of the opinion) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify
does not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of the Fund;
(ii) The authorized and outstanding capital stock of the
Fund is as set forth in the Registration Statement and Prospectus (or
any amendment or supplement thereto through the date of the opinion);
and the description of the authorized capital stock of the Fund
contained in the Prospectus (or any amendment or supplement thereto
through the date of the opinion) under the caption "Description of
Shares" conforms in all material respects as to legal matters to the
terms thereof contained in the Fund's Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Shares have been duly
authorized and validly issued and are fully paid and nonassessable,
except that, as described in the Prospectus under the heading,
"Certain Provisions in the Declaration of Trust," shareholders of the
Fund may under certain circumstances be held personally liable for its
obligations;
20
(iv) The Shares have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and not subject to any preemptive rights that
entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Fund, except that, as described in the
Prospectus under the heading, "Certain Provisions in the Declaration
of Trust," shareholders of the Fund may under certain circumstances be
held personally liable for its obligations;
(v) The form of certificate for the Shares is in due and
proper form and complies with the requirements of all applicable laws
and the AMEX;
(vi) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver the
Shares to the Underwriters as provided herein and this Agreement and
each of the Fund Agreements have been duly authorized, executed and
delivered by the Fund and assuming due authorization, execution and
delivery by the other parties thereto and that the performance of this
Agreement and the Fund Agreements by such other parties will not
violate law, agreements to which such other parties or their
properties are subject or orders applicable to such other parties,
constitute the valid, legal and binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
enforcement of rights to indemnity hereunder may be limited by federal
or state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles,
whether enforcement is considered in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid, legal and binding
agreement of the Manager, enforceable against the Manager in
accordance with its terms, except as enforcement of rights to
indemnity hereunder may be limited by federal or state securities laws
or principles of public policy and subject to the qualification that
the enforceability of the Manager's obligations hereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equitable principles, whether enforcement is considered in a
proceeding in equity or at law;
(viii) The Fund Agreements comply in all material respects with
all applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(ix) The Fund is not in violation of its Declaration of
Trust or By-Laws or to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance of
any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of
21
indebtedness, except as may be disclosed in the Prospectus (and any
amendment or supplement thereto);
(x) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any official
is required on the part of the Fund (except as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under
state securities or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement,
performance of the Fund Agreements or this Agreement by the Fund, the
consummation by the Fund of the transactions contemplated thereby or
hereby or the adoption of the Fund's Dividend Reinvestment Plan;
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement or the Fund
Agreements, compliance by the Fund with the provisions hereof or
thereof, consummation by the Fund of the transactions contemplated
hereby or thereby nor the adoption of the Fund's Dividend Reinvestment
Plan violates the Declaration of Trust or By-Laws of the Fund or any
material agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties is bound that
is an exhibit to the Registration Statement or that is known to such
counsel after reasonable inquiry or, to the best of such counsel's
knowledge after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such counsel's
knowledge after reasonable inquiry, will any such action result in any
violation of any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Fund or any of its properties,
except that, in the published opinion of the Commission, the
indemnification provisions in this Agreement and the Fund Agreements,
insofar as they relate to indemnification for liabilities arising
under the 1933 Act, are against public policy as expressed in the 1933
Act and therefore unenforceable;
(xii) The Registration Statement and all post-effective
amendments, if any, have become effective under the 1933 Act and, to
the best knowledge of such counsel after reasonable inquiry, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission; and any filing of the Prospectus and
any amendments or supplements thereto required pursuant to Rule 497 of
the 1933 Act Rules and Regulations prior to the date of such opinion
has been made in accordance with Rule 497;
22
(xiii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, non-diversified management investment
company and all action has been taken by the Fund as required by the
1933 Act and the 1940 Act and the Rules and Regulations in connection
with the issuance and sale of the Shares to make the public offering
and consummate the sale of the Shares as contemplated by this
Agreement;
(xiv) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them
through the date of the opinion) under the caption "Tax Matters" have
been reviewed by such counsel and to the extent they describe or
summarize tax laws, doctrines or practices of the United States,
present a fair and accurate description or summary thereof as of the
date of the opinion;
(xv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement to either of them through
the date of the opinion), insofar as they are descriptions of
contracts, agreements or other legal documents or refer to statements
of law or legal conclusions, are accurate and present fairly the
information required to be shown;
(xvi) The Registration Statement and the Prospectus (and any
amendment or supplement to either of them through the date of the
opinion) comply as to form in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and
Regulations (except that no opinion need be expressed as to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein as to which such
counsel need not express any opinion);
(xvii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus
(or any amendment or supplement thereto through the date of the
opinion), there are no actions, suits or other legal or governmental
proceedings pending or expressly threatened against the Fund (through
the date of the opinion) and (B) there are no material agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus (or
any amendment or supplement to either of them through the date of the
opinion) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required, as the case may be;
(xviii) To the best knowledge of such counsel after reasonable
inquiry, the Fund is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund; and
23
(xix) The Shares are duly authorized for listing, subject to
official notice of issuance, on the American Stock Exchange and the
Fund's registration statement on Form 8-A under the 1934 Act is
effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to
believe that the Registration Statement, at the time the Registration
Statement became effective or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date or the Option Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of the State of Illinois, the
State of California, The Commonwealth of Massachusetts and the United
States. To the extent they deem proper and to the extent specified in such
opinion, such counsel may rely, as to matters involving the application of
laws of The Commonwealth of Massachusetts, upon the opinion of Xxxxxxx
XxXxxxxxx LLP and, as to matters involving the application of laws of the
State of California, upon the opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
or, as to other matters, other counsel of good standing whom they believe
to be reliable and who are satisfactory to the Representatives; provided
that (X) such reliance is expressly authorized by the opinion so relied
upon and a copy of each such opinion is delivered to the Representatives
and is, in form and substance, satisfactory to them and their counsel and
(Y) Xxxx, Xxxx & Xxxxx LLC states in their opinion that they believe that
they and the Underwriters are justified in relying thereon. As to matters
involving the application of the federal laws of the United States to the
Taxable Equivalent Yield Tables contained in Appendix B to the statement of
additional information, such counsel may rely on the comfort letter
provided by Xxxxxxx and Xxxxxx. In addition, in giving the opinion
contained in Section 9(b)(vii) above, such counsel may rely on the
paragraphs in the opinion of Xxxxxxx X. Xxxxxxxxx corresponding to Sections
9(c)(i), (iii) and (v) below; provided that (x) such reliance is expressly
authorized by the opinion so relied upon and (y) Xxxx, Xxxx & Xxxxx LLC
states in its opinion that it believes that it and the Underwriters are
justified in relying thereon.
24
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxxxxx, Managing Director, Assistant Secretary and
General Counsel for the Manager, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, to the effect
that:
(i) The Manager is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to so
register or to qualify does not have a material, adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Manager;
(ii) The Manager is duly registered with the Commission
under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Manager has corporate power and authority to
enter into this Agreement and the Management Agreement and this
Agreement and the Management Agreement have been duly authorized,
executed and delivered by the Manager and the Management
Agreement is a valid, legal and binding agreement of the Manager,
enforceable against the Manager in accordance with its terms,
except as enforcement of rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or
principles of public policy and subject to the qualification that
the enforceability of the Manager's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles;
(iv) The Management Agreement complies in all material
respects with all applicable provisions of the Advisers Act, the
1940 Act and the Advisers Act Rules and Regulations and the 1940
Act Rules and Regulations;
(v) Neither the execution and delivery by the Manager of
this Agreement or the Management Agreement nor the consummation
by the Manager of the transactions contemplated hereunder or
thereunder constitutes or will constitute a breach of or a
default under the Certificate of Incorporation or By-Laws of the
Manager or any material agreement, indenture, lease or other
instrument to which the Manager is a party or by which it or any
of its properties is bound that is known to such counsel after
reasonable inquiry, or will result in the creation or imposition
of any material lien, charge or encumbrance upon any
25
property or assets of the Manager, nor will any such action
result in any violation of any existing material law, regulation,
ruling (assuming compliance with all applicable state securities
and Blue Sky laws), judgment, injunction, order or decree known
to such counsel after reasonable inquiry, applicable to the Fund
or any of its properties;
(vi) The description of the Manager and its business in
the Prospectus (and any amendment or supplement thereto) complies
in all material respects with all requirements of the 1933 Act,
the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in
the Prospectus (and any amendment or supplement thereto), there
are no actions, suits or other legal or governmental proceedings
pending or threatened against the Manager or to which the Manager
or any of its property is subject which are required to be
described in the Registration Statement or Prospectus (or any
amendment or supplement to either of them);
(viii) The Manager owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for
the Manager to carry on its business as contemplated in the
Prospectus (and any amendment or supplement thereto); and
(ix) No material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Manager for the
performance of this Agreement or the Management Agreement by the
Manager or for the consummation by the Manager of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to
determine independently and does not assume any responsibility
for, the accuracy or completeness of the statements in the
Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof and
nothing has come to its attention that has caused it to believe
that the Registration Statement at the time it became effective
or the Prospectus, as of its date and as of the Closing Date or
the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading or that
any amendment or supplement to the Prospectus, as of the Closing
Date or the Option Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need
26
express no opinion with respect to the financial statements and
the notes thereto and the schedules and other financial and
statistical data included in the Registration Statement or the
Prospectus).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of
Illinois, the Delaware General Corporation Law statute and the
laws of the United States and may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained
by the Manager as to laws of any jurisdiction other than the
United States, the State of Illinois and the Delaware General
Corporation Law statute, provided that (X) each such local
counsel is acceptable to the Representatives, (Y) such reliance
is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is
in form and substance satisfactory to them and their counsel and
(Z) counsel shall state in his view that he believes that he and
the Underwriters are justified in relying thereon.
(d) (i) You shall have received on the Closing Date an opinion of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special California counsel to the
Fund, dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, to the effect that:
The statements contained in the Prospectus under the
headings "Risks - Concentration Risk" and "Tax Matters -
California Tax Matters" and in Appendix D to the statement of
additional information under the headings "Factors Pertaining to
California" and "California Tax Matters", to the extent that such
statements constitute matters of law or legal conclusions,
provide a fair and accurate summary of such law or conclusions.
Such statements are based on current law and special counsel's
understanding of the Fund's proposed operations, as disclosed in
the Prospectus.
Such counsel shall also state that although special counsel does
not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than to the extent set
forth above), and has not made any independent check or verification
thereof, no facts have come to the attention of such special counsel
which would lead it to believe that the material contained under the
headings "Risks - Concentration Risk" and "Tax Matters - California
Tax Matters" and in Appendix D to the statement of additional
information under the headings "Factors Pertaining to California" and
"California Tax Matters" in the Registration Statement, at the time
the Registration Statement became effective, or in the Prospectus, as
of its date and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made) not
misleading or that the material contained under such headings in any
amendment or supplement to the Prospectus, as of the Closing Date or
the Option Closing Date, contained an untrue
27
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such special counsel may rely as to
matters of fact, to the extent such special counsel deems proper, on
certificates of responsible officers of the Fund and of the Manager,
and of public officials.
(ii) You shall have received on the Closing Date a comfort
letter, substantially in the form heretofore approved by you, from
Xxxxxxx and Xxxxxx, special counsel to the Fund, dated the Closing
Date and addressed to you, as Representatives of the several
Underwriters, with respect to the information presented in Appendix B
to the statement of additional information under the heading "Taxable
Equivalent Yield Tables".
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to such
matters as the Underwriters may require and the Fund, the Manager and
their respective counsels shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Ernst & Young LLP, independent certified
public accountants, substantially in the forms heretofore approved by
you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or
any amendment or supplement thereto) or any Prepricing Prospectus or
any sales material shall have been issued and no proceedings for such
purpose or for the purpose of commencing an enforcement action against
the Fund, the Manager or, with respect to the transactions
contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, any Underwriter, may be pending before
or, to the knowledge of the Fund, the Manager or any Underwriter or in
the reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the
Closing Date and that any request for additional information on the
part of the Commission (to be included in the Registration Statement,
the Prospectus or otherwise) be complied with to the satisfaction of
the Representatives, (ii) there shall not have been any change in the
capital stock of the Fund nor any material increase in debt of the
Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund shall not have sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have been any
material, adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Fund or the Manager; (iv) the Fund and the Manager must not
have sustained any material loss or interference with its business
from any court or from
28
legislative or other governmental action, order or decree or from any
other occurrence not described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them); and
(v) all of the representations and warranties of the Fund and the
Manager contained in this Agreement shall be true and correct on and
as of the date hereof and as of the Closing Date as if made on and as
of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Fund or the Manager not contemplated by the Prospectus (and any
amendment or supplement thereto), which in your opinion, as
Representatives of the several Underwriters, would materially,
adversely affect the market for the Shares or (ii)any event or
development relating to or involving the Fund, the Manager or any
officer or trustee or director of the Fund or the Manager which makes
any statement of a material fact made in the Prospectus (or any
amendment or supplement thereto) untrue or which, in the opinion of
the Fund and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the Prospectus (or
any amendment or supplement thereto) in order to state a material fact
required by the 1933 Act, the 1940 Act, the Rules and Regulations or
any other law to be stated therein or necessary in order to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading, if amending
or supplementing the Prospectus (or any amendment or supplement
thereto) to reflect such event or development would, in your opinion,
as Representatives of the several Underwriters, materially, adversely
affect the market for the Shares.
(i) That neither the Fund nor the Manager shall have failed at or
prior to the Closing Date to have performed or complied with any of
the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a
certificate, dated such date, of the chief administrative officer,
president, any managing director or any vice president and of the
controller or treasurer of each of the Fund and the Manager certifying
that (i) the signers have carefully examined the Registration
Statement, the Prospectus (and any amendments or supplements to either
of them) and this Agreement, (ii) the representations and warranties
of the Fund (with respect to the certificates from such Fund officers)
and the representations of the Manager (with respect to the
certificates from such officers of the Manager) in this Agreement are
true and correct on and as of the date of the certificate as if made
on such date, (iii) since the date of the Prospectus (and any
amendment or supplement thereto) there has not been any material,
adverse change in the condition (financial or other), business,
prospects (other than as a result of a change in the financial markets
generally), properties, net assets or results of operations of the
Fund (with respect to the certificates from such Fund officers) or the
Manager (with respect to the certificates from such officers of the
Manager), (iv) to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the Shares or
having a material, adverse effect
29
on the Fund (with respect to the certificates from such Fund officers)
or the Manager (with respect to the certificates from such officers of
the Manager) has been issued and no proceedings for any such purpose
are pending before or threatened by the Commission or any court or
other regulatory body, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official, (v) each of the Fund (with respect to certificates from
such Fund officers) and the Manager (with respect to certificates from
such officers of the Manager) has performed and complied with all
agreements that this Agreement requires it to perform by such Closing
Date, (vi) neither the Fund (with respect to the certificate from such
officers of the Fund) nor the Manager (with respect to the certificate
from such officers of the Manager) has sustained any material loss or
interference with its business from any court or from legislative or
other governmental action, order or decree or from any other
occurrence not described in the Registration Statement and the
Prospectus and any amendment or supplement to either of them and (vii)
with respect to the certificate from such officers of the Fund, there
has not been any change in the capital stock of the Fund nor any
material increase in the debt of the Fund from that set forth in the
Prospectus (and any amendment or supplement thereto) and the Fund has
not sustained any material liabilities or obligations, direct or
contingent, other than those reflected in the Prospectus (and any
amendment or supplement thereto).
(k) That the Fund and the Manager shall have furnished to you
such further certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the
Fund and the Manager).
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel acting in
good faith.
Any certificate or document signed by any officer of the Fund or
the Manager and delivered to you, as Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a
representation and warranty by the Fund or the Manager to each
Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to (i) the accuracy of and
compliance with the representations and warranties of the Fund and the
Manager contained herein on and as of the Option Closing Date as
though made on any Option Closing Date, (ii) satisfaction on and as of
any Option Closing Date of the conditions set forth in this Section 9
except that, if any Option Closing Date is other than the Closing
Date, the certificates, opinions and letters referred to in paragraphs
(b), (c), (d), (e), (f), (j), (k) and this paragraph shall be dated
the Option Closing Date in question and the opinions and letters
called for by paragraphs (b), (c), (d) and (e) shall be revised to
reflect the sale of Additional Shares and (iii) the absence of
circumstances on or prior to the Option Closing Date which would
permit termination of this Agreement pursuant to Section 11 hereof if
they existed on or prior to the Closing Date.
30
10. Effective Date of Agreement.This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii)
if, at the time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission. Until such
time as this Agreement shall have become effective, it may be terminated by
the Fund by notifying you or by you, as Representatives of the several
Underwriters, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder and
the aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
aggregate number of Firm Shares set forth opposite its name in Schedule I
hereto bears to the aggregate number of Firm Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with of the Xxxxxxx Xxxxx Xxxxxx Master Agreement
Among Underwriters, to purchase Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase. If
any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Fund for the purchase
of such Firm Shares by one or more non-defaulting Underwriters or other
party or parties approved by you and the Fund are not made within 36 hours
after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Fund. In any such case which
does not result in termination of this Agreement, either you or the Fund
shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your
approval and the approval of the Fund, purchases Firm Shares which a
defaulting Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of
the Underwriters to the Fund or the Manager, by notice given to the Fund or
the Manager prior to delivery of and payment for the Firm Shares and any
Additional Shares, as the case may be, if at any time prior to such time
(i) trading in the Fund's Common Shares shall have been suspended by the
Commission or the AMEX or trading in securities generally on the NYSE or
the AMEX shall have been suspended or limited or minimum prices for trading
in securities generally shall have been established on either of such
Exchanges, (ii) a commercial banking moratorium shall have been declared by
either federal or
31
New York state authorities, or (iii) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which
on financial markets in the United States is such as to make it, in your
sole judgment, impracticable or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Prospectus (exclusive of any
supplement thereto). Notice of such termination may be given to the Fund or
the Manager by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. Expenses. The Fund agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Fund of
its obligations hereunder: (a) the preparation, printing or reproduction,
filing (including, without limitation, the filing fees prescribed by the
1933 Act, the 1940 Act and the Rules and Regulations) and distribution of
the Registration Statement (including exhibits thereto), the Prospectus,
each Prepricing Prospectus and the 1940 Act Notification and all amendments
or supplements to any of them, (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the
Prospectus, each Prepricing Prospectus, any sales material and all
amendments or supplements to any of them as may be reasonably requested for
use in connection with the offering and sale of the Shares, (c) the
preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes and transfer agent
and registrar fees payable in connection with the original issuance and
sale of such Shares, (d) the registrations or qualifications of the Shares
for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification),
(e) the fees and expenses of the Fund's independent accountants, counsel
for the Fund and of the transfer agent, (f) the expenses of delivery to the
Underwriters and dealers (including postage, air freight and the cost of
counting and packaging) of copies of the Prospectus, the Prepricing
Prospectus, any sales material and all amendments or supplements to the
Prospectus as may be requested for use in connection with the offering and
sale of the Shares, (g) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental Blue Sky
Memoranda and all other company-authorized agreements or other documents
printed (or reproduced) and delivered in connection with the offering of
the Shares, (h) the filing fees and the fees and expenses of counsel for
the Underwriters in connection with any filings required to be made with
the NASD and incurred with respect to the review of the offering of the
Shares by the NASD and (i) the registration of the Shares under the 1934
Act and the listing of the Shares on the AMEX.
Notwithstanding the foregoing, in the event that the sale of the Firm
Shares is not consummated pursuant to Section 2 hereof, the Manager will
pay the costs and expenses of the Fund set forth above in this Section 12
(a) through (i), and reimbursements of Underwriter expenses in connection
with the offering shall be made in accordance with Section 5(k) hereof.
13. Information Furnished by the Underwriters. The names of the
underwriters and numbers of Shares listed opposite such names in the first
paragraph under the caption
32
"Underwriting" in the Prospectus, as well as, under the same caption, the
last sentence of the second paragraph, the first sentence of the eleventh
paragraph, the first sentence of the thirteenth paragraph and the
eighteenth paragraph constitute the only information relating to any
Underwriter furnished to the Fund in writing by or on behalf of the
Underwriters through you as such information is referred to herein,
expressly for use in the Prospectus.
14. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (a) if to the Fund or the Manager, c/o
Nuveen Investments at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Berkshire or (b) if to you, as Representatives of the
Underwriters, at the office of Xxxxxxx Xxxxx Barney Inc. at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund, the Manager, their trustees, directors and
officers and the other controlling persons referred to in Section 8 hereof
and their respective successors and assigns to the extent provided herein
and no other person shall acquire or have any right under or by virtue of
this Agreement. Neither the term "successor" or the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts. Consistent with
the Fund's Declaration of Trust, notice is hereby given and the parties
hereto agree that this Agreement has been executed on behalf of the Fund by
the Trustee(s) or officer(s) of the Fund in such capacity and not
individually by them and that the obligations of the Fund under this
Agreement are not binding upon any of them or the shareholders of the Fund
individually but are binding only upon the assets and property of the Fund.
15. Applicable Law; Counterparts.This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
33
Please confirm that the foregoing correctly sets forth the agreement
among the Fund and the Manager and the several Underwriters.
Very truly yours,
NUVEEN INSURED CALIFORNIA TAX-FREE
ADVANTAGE MUNICIPAL FUND
By:
----------------------------------
Title: Chief Administrative Officer
NUVEEN ADVISORY CORP.
By:
------------------------------------
Title: Managing Director
34
Confirmed as of the date
first above written on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
X.X. Xxxxxxx & Sons, Inc.
Prudential Securities Incorporated
Xxxxxxx, Xxxxxx & Co.
Xxxxxxx Xxxxx & Associates, Inc.
RBC Xxxx Xxxxxxxx, Inc.
Wachovia Securities, Inc.
Wedbush Xxxxxx Securities Inc.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
By: XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------------
Title:
35
SCHEDULE I
NAME OF UNDERWRITERS NUMBER OF COMMON SHARES
-------------------- -----------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Nuveen Investments
Total
