Exhibit h
TAXABLE AUCTIONED PREFERRED SHARES
NUVEEN REAL ESTATE INCOME FUND
____ SHARES, SERIES ____
LIQUIDATION PREFERENCE $25,000 PER SHARE
UNDERWRITING AGREEMENT
New York, New York
_______, 2006
Citigroup Global Markets Inc.
[Name of Co-managers]
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Nuveen Real Estate Income Fund, a Massachusetts
business trust (the "Fund"), Nuveen Asset Management, a Delaware corporation
(the "Investment Adviser") and Security Capital Research & Management
Incorporated, a Delaware corporation (the "Subadviser" and together with the
Investment Adviser, the "Advisers"), address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (the "Underwriters"). The Fund proposes to sell to
the Underwriters an aggregate of ___ shares of its Series ___ Taxable Auctioned
Preferred Shares (collectively, the "TAPS"), par value $.01 per share, with a
liquidation preference of $25,000 per share (the shares of TAPS to be sold
hereby are referred to herein, collectively, as the "Shares"). The Shares will
be authorized by, and subject to the terms and conditions of, the Fund's
Declaration of Trust, as amended (the "Declaration of Trust") and the Amended
and Restated Statement Establishing and Fixing the Rights and Preferences of
Taxable Auctioned Preferred Shares adopted in connection with the issuance of
the Shares and as amended through the date hereof (the "Statement") in
substantially the forms filed as exhibits to the Registration Statement referred
to in Section 1 of this Underwriting Agreement (the "Agreement"). Unless
otherwise stated, the term "you" as used herein means Citigroup Global Markets
Inc. individually on its own behalf and on behalf of the other Representatives.
Certain terms used herein are defined in Section 21 hereof.
The Fund and the Advisers wish to confirm as follows their agreements
with the Representatives and the other several Underwriters on whose behalf you
are acting in connection with the several purchases of the Shares by the
Underwriters.
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The Fund has entered into an investment management agreement with the
Investment Adviser dated [________], an exchange traded fund custody agreement
with State Street Bank and Trust Company dated [__________], a shareholder
transfer agency agreement with State Street Bank and Trust Company dated
[____________] and an auction agency agreement with the Bank of New York dated
[________________], and such agreements are herein referred to as the
"Management Agreement," the "Custodian Agreement," the "Transfer Agency
Agreement" and the "Auction Agency Agreement," respectively. The Investment
Adviser has entered into an investment sub-advisory agreement with the
Subadviser dated [July 30, 2003] (the "Sub-Advisory Agreement"). Collectively,
the Management Agreement, the Custodian Agreement, the Transfer Agency Agreement
and the Auction Agency Agreement are herein referred to as the "Fund
Agreements."
1. Representations and Warranties of the Fund and the Advisers. The
Fund and the Advisers, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-133365 and 811-10491) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference
therein), for registration under the Act and the 1940 Act of the
offering and sale of the Shares. The Fund may have filed one or more
amendments thereto, including a related preliminary prospectus
(including the statement of additional information incorporated by
reference therein), each of which has previously been furnished to
you. The Fund will next file with the Commission one of the following:
either (1) prior to the Effective Date of such Registration Statement,
a further amendment to such Registration Statement (including the form
of final prospectus (including the statement of additional information
incorporated by reference therein)) or (2) after the Effective Date of
such Registration Statement, a final prospectus (including the
statement of additional information incorporated by reference therein)
in accordance with Rules 430A and 497. In the case of clause (2), the
Fund has included or incorporated by reference in such Registration
Statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the 1940 Act and
the Rules and Regulations to be included in such Registration
Statement and the Prospectus. As filed, such amendment and form of
final prospectus (including the statement of additional information
incorporated by reference therein), or such final prospectus
(including the statement of additional information incorporated by
reference therein), shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent
the Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus)
as the Fund has advised you, prior to the Execution Time, will be
included or made therein.
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(b) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497,
has taken all required action under the Act, the 1940 Act and the
Rules and Regulations to make the public offering and consummate the
sale of the Shares as contemplated by this Agreement.
(c) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 497 and on the Closing Date (as defined herein),
the Prospectus (and any supplements thereto) will, and the 1940 Act
Notification when originally filed with the Commission and any
amendment or supplement thereto when filed with the Commission did or
will comply in all material respects with the applicable requirements
of the Act, the 1940 Act and the Rules and Regulations and the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the date of any filing
pursuant to Rule 497 and on the Closing Date and any settlement date,
the Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Fund makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto),
in reliance upon and in conformity with information furnished in
writing to the Fund by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto).
(d) The Fund's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Fund conforms to the
description thereof contained in the Registration Statement and the
Prospectus; all outstanding shares of beneficial interest of the Fund
have been duly and validly authorized and issued, are fully paid and
nonassessable and are free of any preemptive or other similar rights;
the Shares have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable and free of any
preemptive or similar rights that entitle or will entitle any person
to acquire any Shares upon issuance thereof by the Fund; the
certificates for the Shares are in valid and sufficient form; and,
except as set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Fund are
outstanding.
(e) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus
(and any amendment or supplement
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to any of them) and is duly registered and qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction which 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 Fund.
The Fund has no subsidiaries.
(f) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act, the 1940 Act
and the rules and regulations of NASD, and such as may be required
under the Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters in the
manner contemplated herein and in the Preliminary Prospectus and the
Prospectus.
(g) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the
consummation of any of the transactions herein contemplated or (ii)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), 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 from transactions in the ordinary course
of business, except as set forth in or contemplated in the Preliminary
Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement, the Preliminary Prospectus or the Prospectus,
or to be filed as an exhibit thereto, which are not described or filed
as required by the Act, the 1940 Act or the Rules and Regulations; and
the statements in the Preliminary Prospectus and the Prospectus under
the headings "Tax Matters," "Description of TAPS" and "Certain
Provisions in the Declaration of Trust" fairly summarize the matters
therein described.
(i) The Fund is not (i) in violation of its charter, Declaration
of Trust, Statement or by-laws of the Fund ("By-Laws"), (ii) in breach
or default in the performance of the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject or
(iii) in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any
decree of the Commission, the NASD, any state securities commission,
any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative
agency or any official having jurisdiction over the Fund.
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(j) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the
charter, Declaration of Trust, Statement or By-Laws, (ii) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound or (iii) 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.
(k) PricewaterhouseCoopers LLP, who have audited the financial
statements included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus, are
independent public accountants with respect to the Fund within the
meaning of the Act, the 1940 Act and the Rules and Regulations.
(l) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Preliminary
Prospectus, the Prospectus and the Registration Statement present
fairly in all material respects the financial condition, results of
operations and cash flows of the Fund as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and the 1940 Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein); and the other financial and statistical information
and data included in the Registration Statement, the Preliminary
Prospectus or the Prospectus are accurately derived from such
financial statements and the books and records of the Fund.
(m) 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.
(n) The Fund has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with
the offering and sale of the Shares other
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than the Registration Statement, the Preliminary Prospectus, the
Prospectus or other materials permitted by the Act, the 1940 Act or
the Rules and Regulations.
(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 Preliminary Prospectus and the Prospectus; the Fund has
fulfilled and performed all its material obligations with respect to
such permits and no event has occurred which allows or, after notice
or lapse of time, would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Fund
under any such permit, subject in each case to such qualification as
may be set forth in the Preliminary Prospectus and the Prospectus;
and, except as described in the Preliminary Prospectus and the
Prospectus, 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 objectives, policies
and restrictions of the Fund and the applicable requirements of the
1940 Act, the 1940 Act Rules and Regulations and the Internal Revenue
Code of 1986, as amended (the "Code"); (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate
net asset value, to maintain accountability for assets and to maintain
material compliance with the books and records requirements under the
1940 Act and the 1940 Act Rules and Regulations; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
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
Preliminary Prospectus and 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, the Preliminary
Prospectus and the Prospectus, the Fund has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the Shares,
and the Fund is not aware of any such action taken or to be taken by
any affiliates of the Fund.
(s) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940
Act Notification has been duly filed with the Commission. 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.
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(t) The Fund owns or leases all such properties as are necessary
to the conduct of its operations as presently conducted.
(u) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by the Fund or the Advisers
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 Act, the 1940 Act,
the Rules and Regulations and the rules and interpretations of the
NASD and if required to be filed with the NASD under the NASD's
conduct rules were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel
for the Underwriters, for filing. No sales material contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(v) This Agreement and each of the Fund Agreements complies in
all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Advisers Act and the Advisers
Act Rules and Regulations.
(w) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(x) The Fund has filed all tax returns required to be filed and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable; and the Fund has been and is currently
in compliance with the requirements of Subchapter M of the Code to
qualify as a regulated investment company under the Code.
(y) 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.
(z) The Fund's directors and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in
all material respects; and there are no claims by the Fund under any
such policy or fidelity bond as to which any insurance company is
denying liability or defending under a reservation of rights clause;
the Fund has not been refused any insurance coverage sought or applied
for; and the Fund has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or otherwise),
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), whether or not arising from transactions
in the ordinary course of business, except as set forth in or
8
contemplated in the Preliminary Prospectus and the Prospectus
(exclusive of any supplement thereto).
(aa) Except as disclosed in the Preliminary Prospectus and the
Prospectus, no director of the Fund is an "interested person" (as
defined in the 1940 Act) of the Fund or an "affiliated person" (as
defined in the 1940 Act) of any Underwriter listed in Schedule I
hereto.
(bb) The Fund maintains "disclosure controls and procedures" (as
such term is defined in Rule 30a-3 under the 1940 Act); such
disclosure controls and procedures are effective.
(cc) The Common Shares are duly listed on the American Stock
Exchange (the "AMEX").
(dd) Except as disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Fund (i) does not have
any material lending or other relationship with any bank or lending
affiliate of Citigroup Global Markets Holdings Inc. and (ii) does not
intend to use any of the proceeds from the sale of the Shares
hereunder to repay any outstanding debt owed to any affiliate of
Citigroup Global Markets Holdings Inc.
(ee) There is and has been no failure on the part of the Fund and
any of the Fund's directors or officers, in their capacities as such,
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith (the
"Xxxxxxxx-Xxxxx Act"), including Sections 302 and 906 related to
certifications.
(ff) The Fund has adopted and implemented written policies and
procedures reasonably designed to prevent violation of the Federal
Securities Laws (as that term is defined in the 1940 Act) by the Fund,
including policies and procedures that provide oversight of compliance
by each investment adviser, administrator and transfer agent of the
Fund.
Any certificate signed by any officer of the Fund and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed a representation and warranty by the Fund, as to
matters covered therein, to each Underwriter.
2. Representations and Warranties of the Advisers. Each of the
Investment Adviser and the Subadviser, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser has been duly formed and is validly existing in
good standing under the laws of the state or country of incorporation,
as the case may be, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such
9
qualification, except where the failure to so register or to qualify
would not have a material, adverse effect on the condition (financial
or other), business, properties, net assets or results of operations
of such Adviser.
(b) Such Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Fund Agreements to which it is a
party or the Sub-Advisory Agreement as contemplated by the Preliminary
Prospectus and the Prospectus.
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement; the execution and delivery of, and the
performance by such Adviser of its obligations under, this Agreement,
the Fund Agreements to which it is a party and the Sub-Advisory
Agreement have been duly and validly authorized by such Adviser; and
this Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement have been duly executed and delivered by such
Adviser and constitute the valid and legally binding agreements of
such Adviser, enforceable against such Adviser in accordance with
their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Preliminary Prospectus and the Prospectus and
under this Agreement, the Management Agreement and the Sub-Advisory
Agreement.
(e) Such Adviser is not in violation of its certificate or
articles of incorporation, by-laws, certificate or articles of
formation or organization, limited liability company agreement or
other organizational documents, as the case may be, or in violation of
the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith to which it
is subject, in default under any material agreement, indenture or
instrument or in breach or violation of any judgment, decree, order,
rule or regulation of any court or governmental or self-regulatory
agency or body except where such violation or breach would not have a
material, adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations
of such Adviser or on the ability of such Adviser to perform its
obligations under this Agreement, the Fund Agreements to which it is a
party or the Sub-Advisory Agreement.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration
Statement, the Preliminary Prospectus and the Prospectus complied and
comply in all material respects with
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the provisions of the Act, the 1940 Act, the Advisers Act, the Rules
and Regulations and the Advisers Act Rules and Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(g) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
such Adviser or its property is pending or, to the knowledge of such
Adviser, threatened that (i) is required to be described in the
Preliminary Prospectus and Prospectus that is not so described as
required, (ii) could reasonably be expected to have a material adverse
effect on the ability of such Adviser to fulfill its obligations
hereunder or under the Fund Agreements to which it is a party or the
Sub-Advisory Agreement or (iii) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
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 from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Preliminary Prospectus and the Prospectus
(exclusive of any supplement thereto); and there are no agreements,
contracts, indentures, leases, permits or other instruments relating
to such Adviser that are required to be described in the Registration
Statement, the Preliminary Prospectus or the Prospectus or to be filed
as an exhibit to the Registration Statement that are not described or
filed as required by the Act, the 1940 Act or the Rules and
Regulations.
(h) Since the date as of which information is given in the
Preliminary Prospectus and the Prospectus, except as otherwise stated
therein, (i) there has been no material, adverse change in the
condition (financial or other), business, prospects, properties, net
assets or results of operations or business prospects of such Adviser,
whether or not arising from the ordinary course of business and (ii)
there have been no transactions entered into by such Adviser which are
material to such Adviser other than those in the ordinary course of
its business as described in the Preliminary Prospectus and the
Prospectus.
(i) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described
in the Preliminary Prospectus and the Prospectus; such Adviser has
fulfilled and performed all its material obligations with respect to
such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of such Adviser
under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is
a party and the Sub-Advisory 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.
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(k) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements to
which such Adviser is a party and the Sub-Advisory Agreement, except
such as have been made or obtained under the Act, the 1940 Act, and
such as may be required under the Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated herein and in the Preliminary
Prospectus and in the Prospectus.
(l) Neither the execution, delivery or performance of this
Agreement, the Fund Agreements to which such Adviser is a party and
the Sub-Advisory Agreement, nor the consummation by the Fund or such
Adviser of the transactions herein or therein contemplated (i)
conflicts or will conflict with or constitutes or will constitute a
breach of the organizational documents of such Adviser, (ii) conflicts
or will conflict with or constitutes or will constitute a breach of or
a default under, any agreement, indenture, lease or other instrument
to which such Adviser is a party or by which it or any of its
properties may be bound or (iii) materially violates or will
materially violate any material statute, law, regulation or filing or
judgment, injunction, order or decree applicable to such Adviser or
any of its properties or will result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets
of such Adviser pursuant to the terms of any agreement or instrument
to which such Adviser is a party or by which such Adviser may be bound
or to which any of the property or assets of such Adviser is subject.
(m) Except as stated in this Agreement and in the Preliminary
Prospectus and the Prospectus, such Adviser has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the Shares,
and such Adviser is not aware of any such action taken or to be taken
by any affiliates of such Adviser.
(n) In the event that the Fund or such Adviser makes available
any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, such Adviser will
install and maintain pre-qualification and password-protection or
similar procedures which are reasonably designed to effectively
prohibit access to such promotional materials by persons other than
qualified broker-dealers and registered representatives thereof.
Any certificate signed by any officer of such Adviser and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed a representation and warranty by such Adviser, as
to matters covered therein, to each Underwriter.
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3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $______ per
share, the amount of the Shares set forth opposite such Underwriter's name in
Schedule I hereto.
4. Delivery and Payment. Delivery of and payment for the Shares shall
be made at 10:00 AM, New York City time, on _______, 2006 or at such time on
such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Fund or as provided in Section 10
hereof (such date and time of delivery and payment for the Shares being herein
called the "Closing Date"). Delivery of the Shares shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Fund by wire transfer payable in
same-day funds to an account specified by the Fund. Delivery of the Shares shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Shares for sale to the public as set forth in
the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the
Investment Adviser and the Subadviser, jointly and severally, agree with the
several Underwriters as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering
of the Shares, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Fund has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus
is otherwise required under Rule 497, the Fund will cause the
Prospectus, properly completed, and any supplement thereto to be filed
in a form approved by the Representatives with the Commission pursuant
to the applicable paragraph of Rule 497 within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Fund will promptly advise
the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 497 or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Shares, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional
13
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Fund of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Fund will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act, the 1940 Act and the Rules and
Regulations, the Fund promptly will (1) notify the Representatives of
any such event, (2) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 6, an amendment
or supplement which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(c) The Fund will furnish to the Representatives and counsel for
the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(d) The Fund will arrange, if necessary, for the qualification of
the Shares for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Shares;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject.
(e) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Fund or any
affiliate of the Fund or any person in privity with the Fund, directly
or indirectly, including the filing (or participation in the filing)
of a Registration Statement with the Commission in respect of, or
establish or increase a put equivalent position or
14
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any senior securities (as defined in
the 1940 Act) other than the Shares or any securities convertible
into, or exercisable, or exchangeable for, senior securities other
than the Shares; or publicly announce an intention to effect any such
transaction for a period of 180 days following the Execution Time,
provided, however, that the Fund may issue and sell Common Shares
pursuant to any dividend reinvestment plan of the Fund in effect at
the Execution Time.
(f) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation,
the Xxxxxxxx-Xxxxx Act, and will use its best efforts to cause the
Fund's directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation,
the provisions of the Xxxxxxxx-Xxxxx Act.
(g) Except as stated in this Agreement, the Preliminary
Prospectus and the Prospectus, neither the Fund nor the Advisers will
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Fund to facilitate the sale or resale
of the Shares.
(h) As soon as practicable, the Fund will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Fund which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus and the 1940 Act Notification and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, any sales
material and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares,
including any stamp or transfer taxes in connection with the original
issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, any Blue Sky memorandum, dealer
agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Shares; (v) any registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification);
(vi) any filings required to be made with the NASD (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (vii) the transportation and
other expenses
15
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Shares; (viii) the fees
and expenses of the Fund's accountants and the fees and expenses of
counsel (including local and special counsel) for the Fund, (ix) any
expenses and fees for the cost of Rating Agencies (as defined below);
and (x) all other costs and expenses incident to the performance by
the Fund of its obligations hereunder.
(j) 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 Preliminary Prospectus and Prospectus.
(k) The Fund will continue to comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company
under the Code.
(l) The Fund and the Advisers will use their reasonable best
efforts to perform all of the agreements required of them by this
Agreement and discharge all conditions of theirs to closing as set
forth in this Agreement.
(m) The Fund will cause the Shares, prior to the Closing Date, to
be assigned a rating of 'AAA' by Fitch Ratings ("Fitch") and 'Aaa' by
Xxxxx'x Investors Service, Inc. ("Moody's", and together with Fitch,
the "Rating Agencies").
(n) On or before the seventh business day after the Closing Date
the Fund will furnish to you (i) a report showing compliance with the
asset coverage requirements of the 1940 Act as of the Closing Date and
(ii) a Shares Basic Maintenance Certificate (as defined in the
Statement) as of a date within seven business days after the Closing
Date, each in form and substance satisfactory to you. Each such report
shall assume the receipt of the net proceeds from the sale of the
Shares.
7. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Shares shall be subject to the accuracy of
the representations and warranties on the part of the Fund and the Advisers
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Fund and the Advisers made in any certificates pursuant
to the provisions hereof, to the performance by the Fund or the Advisers of
their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the total public offering price, if such determination occurred at
or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on
the Business Day following the day on which the total public offering
price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Prospectus, or any
supplement thereto,
16
is required pursuant to Rule 497, the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 497; and no stop order suspending the effectiveness
of the Registration Statement or order pursuant to Section 8(e) of the
1940 Act shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Fund, the
Advisers or any Underwriter, threatened, and any request of the
Commission for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been
complied with in all material respects.
(b) The Fund shall have requested and caused Xxxxxx, Xxxxx,
Xxxxxxx & Xxxxxxxx, P.C., special counsel for the Fund and the
Investment Adviser, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) The Fund (A) has been duly formed and is validly existing
under the Declaration of Trust and the laws of the Commonwealth of
Massachusetts as a voluntary association with transferable shares of
beneficial interest, commonly referred to as a "Massachusetts business
trust," (B) is in good standing with the Secretary of the Commonwealth
of Massachusetts, and (C) has full power and authority as a business
trust, to own, lease and operate its properties and to conduct its
business, in each case as described in the Preliminary Prospectus and
the Prospectus;
(ii) The Common Shares have been duly authorized by the Fund and
are validly issued, fully paid and nonassessable, except that, as set
forth in the Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable for its
obligations, and are free of any statutory preemptive rights;
(iii) The Shares have been duly authorized by the Fund for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable, except that, as set forth in the
Registration Statement, shareholders of a Massachusetts business trust
may under certain circumstances be held liable for its obligations,
and are free of any statutory preemptive rights. Except as set forth
in the Declaration of Trust and the Statement, as of the date hereof,
there are no restrictions upon the transfer of any Shares pursuant to
the Declaration of Trust or By-Laws of the Fund or, to the best
knowledge of such counsel, any agreement or other outstanding
instrument to which the Fund is a party; and the specimen share
certificates comply as to form with all requirements of Massachusetts
law;
(iv) The description of the authorized Common Shares of the Fund
contained under the caption "Description of Common Shares" in the
Preliminary Prospectus and the Prospectus conforms in all material
respects as to legal matters to the terms thereof contained in the
Declaration of Trust and Statement. The statements in the first two
paragraphs under the caption "Certain Provisions in the
17
Declaration of Trust" in the Prospectus, to the extent that they
constitute descriptions of Massachusetts law, are in summary form
accurate in all material respects. The description of the Shares
contained under the captions "Description of TAPS" and "The Auction"
in the Preliminary Prospectus and the Prospectus conforms in all
material respects as to legal matters to the terms thereof contained
in the Declaration of Trust and Statement;
(v) The Registration Statement is effective under the Act and was
filed under the 1940 Act; any required filing of the Prospectus
pursuant to Rule 497 of the Act Rules and Regulations has been made
within the time periods required by Rule 497; no stop-order suspending
the effectiveness of the Registration Statement or order pursuant to
Section 8(e) of the 1940 Act has been issued and to the best of such
counsel's knowledge, no proceeding for any such purpose has been
instituted or is pending or threatened in writing by the Commission;
(vi) The Fund's 1940 Act Notification, the Registration Statement
and the Prospectus and each amendment or supplement to the
Registration Statement and the Prospectus as of their respective issue
dates (except the financial statements and other financial data
contained therein, as to which we express no opinion) complies as to
form in all material respects with the requirements of the Act, the
1940 Act and the Rules and Regulations;
(vii) The statements made in the Preliminary Prospectus and the
Prospectus under the captions "Description of TAPS" and "The Auction,"
insofar as they purport to summarize the provisions of the Statement
or other documents or agreements specifically referred to therein,
constitute accurate summaries of the terms of the Statement,
Declaration of Trust or such other documents, in all material
respects;
(viii) The statements made in the Preliminary Prospectus and the
Prospectus under the captions "Prospectus Summary -- Federal Income
Taxes" and "Tax Matters," insofar as they constitute matters of law
and regulations or legal conclusions with respect thereto, have been
reviewed by such counsel and constitute accurate statements of any
such matters of law or legal conclusions, and fairly present the
information called for with respect thereto by Form N-2, in all
material respects;
(ix) To the best of such counsel's knowledge after reasonable
inquiry, there are no legal or governmental proceedings pending or
threatened in writing against the Fund, or to which the Fund or any of
its properties is subject, that are required to be described in the
Registration Statement, the Preliminary Prospectus or the Prospectus,
but are not described therein as required;
(x) To the best of such counsel's knowledge after reasonable
inquiry, there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement, Preliminary Prospectus or the Prospectus, or
to be filed as an exhibit to the Registration Statement that are
18
not described or filed as required by the Act, the 1940 Act or the
Rules and Regulations.
(xi) This Agreement and the Fund Agreements have each been duly
and validly authorized, executed and delivered by the Fund, each
complies with all applicable provisions of the 1940 Act and the 1940
Act Rules and Regulations and the Advisers Act and the rules and
regulations thereunder, and each of the Fund Agreements constitutes
the valid and binding agreement of the Fund, enforceable against the
Fund in accordance with its terms;
(xii) The execution and delivery by the Fund of this Agreement
and the Fund Agreements, the consummation by the Fund of the
transactions contemplated by this Agreement and the Fund Agreements,
the performance by the Fund of its obligations thereunder, the
issuance and sale by the Fund of the Shares will not violate (i) the
Certificate of Trust or Declaration of Trust or (ii) any applicable
Massachusetts law or administrative regulation;
(xiii) The Fund is registered under the 1940 Act as a closed-end,
non-diversified management investment company; the provisions of the
Declaration of Trust, Statement and By-Laws of the Fund and the
investment policies and restrictions described in the Preliminary
Prospectus and the Prospectus do not violate the requirements of the
1940 Act in any material respect;
(xiv) None of the issuance and sale of the Shares by the Fund
pursuant to this Agreement, the execution and delivery of this
Agreement or any of the Fund Agreements by the Fund, or the
performance by the Fund of its agreements under this Agreement or any
of the Fund Agreements (A) requires any consent, approval,
authorization or other order of or registration or filing with, the
Commission, the NASD, or any national securities exchange or
governmental body or agency or, arbitrator or court of the United
States of America, State of Illinois or the Commonwealth of
Massachusetts (except (1) the absence of which, either individually or
in the aggregate, would not have a material adverse effect on the
Fund; (2) such as may have been obtained prior to the date hereof; and
(3) such as may be required for compliance with the AMEX or state
securities or Blue Sky laws of various jurisdictions in accordance
with this Agreement) or (B) violates or will violate or constitutes or
will constitute a breach of any of the provisions of the Declaration
of Trust, Statement, By-Laws or other organizational documents of the
Fund or (C) violates or will violate or constitutes or will constitute
a breach of, or a default under, any material agreement, indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which the Fund is party or by
which it or any of its properties may be bound, or violates any
existing material United States of America, State of Illinois or
Commonwealth of Massachusetts statute, law, regulation (assuming
compliance with all applicable state securities and Blue Sky laws), or
judgment, injunction, order or decree known to us and applicable to
the Fund or any of its properties, or will result in the creation or
imposition of any
19
material lien, charge or encumbrance upon any property or assets of
the Fund pursuant to the terms of any agreement or instrument known to
such counsel to which the Fund is a party or by which it or any of its
property or assets is bound. To the best of such counsel's knowledge,
the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency of the
United States of America, the State of Illinois or the Commonwealth of
Massachusetts;
(xv) No holder of any security of the Fund has any right pursuant
to any agreement known to such counsel to which the Fund is a party to
require registration of shares of beneficial interest, the TAPS or any
other security of the Fund because of the filing of the Registration
Statement or consummation of the transactions contemplated by this
Agreement; and
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, the
Preliminary Prospectus and the Prospectus, such counsel has participated in
the preparation of the Registration Statement, Preliminary Prospectus 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 each of the Preliminary Prospectus, as of the
time of the pricing of the offering of the Shares on _______, 2006 and the
Prospectus, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which they
were made) not misleading or that any amendment or supplement to the
Prospectus, as of the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no view with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data included
in, or omitted from, the Registration Statement, the Preliminary Prospectus
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
Commonwealth of Massachusetts and the United States. To the extent they
deem proper and to the extent specified in such opinion, such counsel may
rely, as to matters involving the application of laws of The Commonwealth
of Massachusetts, upon the opinion of Xxxxxxx XxXxxxxxx LLP or other
counsel of good standing whom they believe to be reliable and who are
satisfactory to the 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) Xxxxxx, Xxxxx, Xxxxxxx &
Xxxxxxxx, P.C. states in their opinion that they believe that they and the
Underwriters are justified in relying thereon. References to the
20
Prospectus in this paragraph (b) shall also include any supplements thereto
at the Closing Date.
(c) You shall have received on the Closing Date an opinion of
__________, Managing Director, Assistant Secretary and Associate
General Counsel for the Investment Adviser and Chief Administrative
Officer for the Fund, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Investment Adviser is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus
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 Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement and the Sub-Advisory Agreement as contemplated by
the Preliminary Prospectus and the Prospectus;
(iii) The Investment Adviser has corporate power and authority to
enter into this Agreement, the Management Agreement and the
Sub-Advisory Agreement, and this Agreement, the Management Agreement
and the Sub-Advisory Agreement have been duly and validly authorized,
executed and delivered by the Investment Adviser and each of the
Management Agreement and the Sub-Advisory Agreement is a valid, legal
and binding agreement of the Investment Adviser, enforceable against
the Investment Adviser in accordance with its terms, subject to the
qualification that the enforceability of the Investment Adviser's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(iv) Each of the Management Agreement and the Sub-Advisory
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 Investment Adviser
of this Agreement, the Management Agreement or the Sub-Advisory
Agreement nor the consummation by the Investment Adviser of the
transactions contemplated hereunder or thereunder constitutes or will
constitute a breach of or a default
21
under the Certificate of Incorporation or By-Laws of the Investment
Adviser or any material agreement, indenture, lease or other
instrument to which the Investment Adviser is a party or by which it
or any of its properties is bound that is known to such counsel after
reasonable inquiry, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets
of the Investment Adviser, nor will any such action result in any
violation of any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel after
reasonable inquiry, applicable to the Fund or any of its properties;
(vi) The description of the Investment Adviser and its business
in the Prospectus (and any amendment or supplement thereto) complies
in all material respects with all requirements of the Act, the 1940
Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus
(and any amendment or supplement thereto), there are no actions, suits
or other legal or governmental proceedings pending or threatened
against the Investment Adviser or to which the Investment Adviser or
any of its property is subject which are required to be described in
the Registration Statement, the Preliminary Prospectus or the
Prospectus;
(viii) The Investment Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Investment Adviser to carry on its business as contemplated in the
Preliminary Prospectus and the Prospectus; and
(ix) No material consent, approval, authorization or order of or
registration or filing with any court, regulatory body, administrative
or other governmental body, agency or official is required on the part
of the Investment Adviser for the performance of this Agreement, the
Management Agreement or the Sub-Advisory Agreement by the Investment
Adviser or for the consummation by the Investment Adviser of the
transactions contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, the
Preliminary Prospectus and the Prospectus, such counsel has participated in
the preparation of the Registration Statement, the Preliminary Prospectus
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 each of the
Preliminary Prospectus, as of the time of the pricing of the offering of
the Shares on _______, 2006 and the Prospectus, as of its date and as of
the Closing Date, contained an untrue statement of a material fact or
omitted to state a
22
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and other
financial and statistical data included in, or omitted from, the
Registration Statement, Preliminary Prospectus 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 Investment Adviser as to laws of any
jurisdiction other than the United States, the State of Illinois and the
Delaware General Corporation Law statute, provided that (X) each such local
counsel is acceptable to the 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) You shall have received on the Closing Date an opinion of
________________, special counsel for the Subadviser, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Subadviser 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, Preliminary Prospectus and the Prospectus 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 Subadviser;
(ii) The Subadviser is duly registered with the Commission under
the Advisers Act as an investment adviser and is not prohibited by the
Advisers Act, the 1940 Act or the rules and regulations promulgated by
the Commission under such acts from acting for the Fund under the
Sub-Advisory Agreement as contemplated by the Preliminary Prospectus
and the Prospectus;
(iii) The Subadviser has corporate power and authority to enter
into this Agreement and the Sub-Advisory Agreement and this Agreement
and the Sub-Advisory Agreement have been duly authorized, executed and
delivered by the Subadviser and the Sub-Advisory Agreement is the
valid, legal and binding agreement of the Subadviser, enforceable
against the Subadviser in accordance
23
with its terms, subject to the qualification that the enforceability
of the Subadviser's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
(iv) The Sub-Advisory Agreement complies in all material respects
with all applicable provisions of the Advisers Act, the 1940 Act and
the Advisers Act Rules and Regulations and the 1940 Act Rules and
Regulations;
(v) Neither the execution and delivery by the Subadviser of this
Agreement or the Sub-Advisory Agreement nor the consummation by the
Subadviser of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
articles of incorporation or by-laws of the Subadviser or any material
agreement, indenture, lease or other instrument to which the
Subadviser is a party or by which it or any of its properties is bound
that is known to such counsel after reasonable inquiry, or will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Subadviser, 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
Subadviser or any of its properties;
(vi) The description of the Subadviser and its business in the
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the Rules
and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Preliminary
Prospectus and the Prospectus, there are no actions, suits or other
legal or governmental proceedings pending or threatened against the
Subadviser or to which the Subadviser or any of its property is
subject that are required to be described in the Registration
Statement, the Preliminary Prospectus and the Prospectus;
(viii) The Subadviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for the
Subadviser to carry on its business as contemplated in the Preliminary
Prospectus and the Prospectus; 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 Subadviser for the performance of this Agreement or the
Sub-Advisory Agreement by the Subadviser or for the consummation by
the Subadviser of the transactions contemplated hereby or thereby.
24
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 Preliminary Prospectus and the
Prospectus, such counsel has participated in the preparation of the
Preliminary Prospectus and the Prospectus, including review and discussion
of the contents thereof and has made certain inquiries of the Fund and the
Investment Adviser, and nothing has come to its attention that has caused
it to believe that the Registration Statement at the time it became
effective or each of the Preliminary Prospectus, as of the time of the
pricing of the offering of the Shares on _______, 2006 and the Prospectus,
as of its date and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made)
not misleading or that any amendment or supplement to the Prospectus, as of
the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in, or omitted
from, the Preliminary Prospectus and 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 Subadviser as to laws of any jurisdiction
other than the United States, the State of Illinois and the Delaware
General Corporation Law Statute, provided that (X) each such local counsel
is acceptable to the Representatives, (Y) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion
is delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (Z) counsel shall state in their
view that they believe that they and the Underwriters are justified in
relying thereon.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx
& Xxxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Shares, the Registration
Statement, the Preliminary Prospectus and the Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Fund and the Advisers
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) Each of the Fund and the Advisers shall have furnished to the
Representatives a certificate, signed by the principal executive
officer or the President and the principal financial or accounting
officer of each of the Fund and the Advisers, as the case may be,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Preliminary Prospectus and the Prospectus, any amendments or
supplements thereto and this Agreement and that:
25
(i) The representations and warranties of the Fund or the
Advisers, as the case may be, in this Agreement are true and correct
on and as of the Closing Date with the same effect as if made on the
Closing Date and the Fund or the Advisers, as the case may be, have
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or, to
the Fund's or each of the Advisers' knowledge, as the case may be,
threatened; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto) (with
respect to the certificate of the Fund) and since the date of the
Prospectus (exclusive of any supplements) (with respect to the
certificate of the Advisers), there has been no material adverse
effect on the condition (financial or otherwise), 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 or each of the Advisers, as
the case may be, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Preliminary Prospectus and the Prospectus (exclusive of any
supplement thereto).
(g) The Fund shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives,
at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act
and the 1940 Act and the Rules and Regulations and that they have
performed a review of the unaudited interim financial information of
the Fund for the ____ -month period ended __________ and as at
___________ and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement,
the Preliminary Prospectus and the Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act, the 1940 Act and the Rules and
Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Fund; their limited review, in
accordance with standards established under Statement on Auditing
Standards No. 100, of the unaudited interim financial information for
the ___ -month period ended __________ and as at __________; carrying
out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the shareholders, trustees and committees of the Board of
the Fund; and inquiries of certain officials of the Fund who have
responsibility for financial and accounting matters of the Fund as
26
to transactions and events subsequent to ________, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement, the Preliminary Prospectus and the Prospectus
do not comply as to form in all material respects with applicable
accounting requirements of the Act, the 1940 Act and with the Rules
and Regulations adopted by the Commission with respect to Registration
Statements on Form N-2; and said unaudited financial statements are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement, the
Preliminary Prospectus and the Prospectus;
(2) with respect to the period subsequent to ________, there were
any changes, at a specified date not more than five days prior to the
date of the letter, in the long-term liabilities, capital stock or net
assets of the Fund or decreases in the shareholders' equity of the as
compared with the amounts shown on the consolidated balance sheet
included in the Registration Statement, the Preliminary Prospectus and
the Prospectus, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by
an explanation by the Fund as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement, the
Preliminary Prospectus and the Prospectus in response to Item 4
(Financial Highlights) and Item 24 (Financial Statements) of Form N-2
is not in conformity with the applicable disclosure requirements of
Form N-2; and
(4) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Fund) set forth in the Registration
Statement, the Preliminary Prospectus and the Prospectus, including
the information set forth under the captions " " and " " in the
Prospectus, agrees with the accounting records of the Fund, excluding
any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(g) of this Section 7 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), business, properties, net assets or results of operations
of the Fund or business prospects
27
(other than as a result of a change in the financial markets
generally) of the Fund or earnings, business or properties of each of
the Advisers, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Shares as contemplated by
the Registration Statement (exclusive of any amendment thereof), the
Preliminary Prospectus and Prospectus (exclusive of any supplement
thereto).
(i) The Fund shall have delivered and the Underwriters shall have
received evidence satisfactory to the Underwriters that the Shares are
rated 'AAA' by Fitch and 'Aaa' by Xxxxx'x as of the Closing Date, and
there shall not have been given any notice of any intended or
potential downgrading, or of any review for a potential downgrading,
in the rating accorded to the Shares by either Rating Agency.
(j) The Fund shall have furnished to the Underwriters a report
showing compliance with the asset coverage requirements of the 1940
Act and a Basic Maintenance Report (as defined in the Statement), in
form and substance reasonably satisfactory to the Underwriters
(k) Prior to the Closing Date, the Fund and the Advisers shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Fund in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered
at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 7 hereof is not satisfied because of
any termination pursuant to Section 11 hereof or because of any refusal,
inability or failure on the part of the Fund or the Advisers to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses
28
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Shares.
9. Indemnification and Contribution. (a) The Fund and the Advisers,
jointly and severally, agree to indemnify and hold harmless each of you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Shares as
originally filed or in any amendment thereof (and including any post-effective
amendment, any Rule 462(b) Registration Statement and any Rule 430A Information
deemed to be included or incorporated therein), or in any Preliminary
Prospectus, the Prospectus any sales material (or in any amendment or supplement
to any of the foregoing), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Fund and the Advisers will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Fund and the Advisers by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Fund and the
Advisers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless each of the Fund and the Advisers, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Advisers within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Fund and the Advisers to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Fund or the Advisers by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Fund and the Advisers acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Shares and, under the
heading "Underwriting," (i) the list of Underwriters and their respective
participation in the sale of the Shares, (ii) the sentences related to
concessions and reallowances, (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids and (iv) the paragraph related
to prospectuses in electronic format in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
29
be made against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the failure to so
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Fund, the Advisers and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, "Losses") to which the Fund, the
Advisers and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Fund and the
Advisers on the one hand (treated jointly for this purpose as one person) and by
the Underwriters on the other from the offering of the Shares; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Shares) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Shares purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Fund, the Advisers and the Underwriters severally shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Fund and the Advisers on the one hand
(treated jointly for this purpose as one person) and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Fund and the Advisers (treated jointly for this purpose as one person)
shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things,
30
whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
provided by the Fund and the Advisers on the one hand (treated jointly for this
purpose as one person) or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Fund, the Advisers and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Fund or the Advisers within the meaning of either the Act or the Exchange
Act, each officer of the Fund and the Advisers who shall have signed the
Registration Statement and each director of the Fund and the Advisers shall have
the same rights to contribution as the Fund and the Advisers, subject in each
case to the applicable terms and conditions of this paragraph (d).
(e) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability from claimants on claims that are the
subject matter of such action, suit or proceeding.
31
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule I hereto bears to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Fund or the Advisers. In the event of a default by any Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Fund and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, without liability on the part of the
Underwriters to the Fund or the Advisers, by notice given to the Fund or the
Advisers prior to delivery of and payment for the Shares, 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 AMEX
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Preliminary Prospectus or the
Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Fund and the Advisers or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Fund or the Advisers or any of the officers, trustees, directors,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the Shares. The provisions of Sections
8 and 9 hereof shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, (1) if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the
32
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or, (2) if sent to the Fund
or the Investment Adviser, will be mailed, delivered or telefaxed to
____________ and confirmed to it at Nuveen Investments, LLC, at 000 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Legal Department; or, (3) if sent to
the Subadviser, will be mailed, delivered or telefaxed to ____________ and
confirmed to it at Security Capital Research & Management Incorporated, at 00
Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000, Attention: Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. No fiduciary duty. Each of the Fund and the Advisers hereby
acknowledges that (a) the purchase and sale of the Shares pursuant to this
Agreement is an arm's-length commercial transaction between the Fund and the
Advisers, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and
not as an agent or fiduciary of the Fund or the Advisers and (c) the Fund's and
Advisers' engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, each of the Fund and the Advisers agrees that it is
solely responsible for making its own judgments in connection with the offering
of Shares (irrespective of whether any of the Underwriters has advised or is
currently advising the Fund or the Advisers on related or other matters). Each
of the Fund and the Advisers agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Fund or the Advisers, in connection with such
transaction or the process leading thereto.
16. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Fund, the Advisers and the
Underwriters, or any of them, with respect to the subject matter hereof.
17. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
18. Waiver of Jury Trial. The Fund and the Advisers hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
19. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
20. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
33
21. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration
of the Fund as an investment company under the 1940 Act on Form N-8A,
as the 1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) dated ______, 2006 and any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus and any amendment or
supplement thereto (including the statement of additional information
incorporated by reference
34
therein) relating to the Shares that is first filed pursuant to Rule
497 after the Execution Time.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Shares that
is filed with the Commission pursuant to Rule 497 and deemed part of
such registration statement pursuant to Rule 430A, as amended at the
Execution Time and, in the event any post-effective amendment thereto
or any Rule 462(b) registration statement becomes effective prior to
the Closing Date, shall also mean such registration statement as so
amended or such Rule 462(b) registration statement, as the case may
be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Shares and the offering thereof permitted to be omitted from the
registration statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement
referred to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules
and Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN REAL ESTATE INCOME FUND
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NUVEEN ASSET MANAGEMENT
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SECURITY CAPITAL RESEARCH &
MANAGEMENT INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF SHARES OF
UNDERWRITERS SERIES ____
------------ -------------------
Citigroup Global Markets Inc.
TOTAL:
