Exhibit h.1
NUVEEN TAX-ADVANTAGED DIVIDEND GROWTH FUND
FUNDPREFERRED SHARES
[ ] SHARES, SERIES T
LIQUIDATION PREFERENCE $25,000 PER SHARE
FORM OF UNDERWRITING AGREEMENT
New York, New York
[ ], 2007
Citigroup Global Markets Inc.
X.X. Xxxxxxx & Sons, Inc.
Nuveen Investments, LLC
As Representatives of the several Underwriters
listed on Schedule I hereto
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Nuveen Tax-Advantaged Dividend Growth Fund, a
Massachusetts business trust (the "Fund"), Nuveen Asset Management, a Delaware
corporation ("NAM"), Santa Xxxxxxx Asset Management, LLC, a Delaware limited
liability company ("Santa Xxxxxxx") and NWQ Investment Management Company, LLC,
a Delaware limited liability company ("NWQ" and together with Santa Xxxxxxx, the
"Subadvisers" and the Subadvisers together with NAM, the "Advisers" or
"Adviser"), address you as underwriters and as the representatives (the
"Representatives") of each of the several underwriters named in Schedule I
hereto (the "Underwriters"). The Fund proposes to sell to the Underwriters [ ]
shares of FundPreferred Shares, Series T, par value $0.01 per share, with a
liquidation preference of $25,000 per share (the shares of FundPreferred Shares
to be sold hereby are referred to herein, as the "Securities"). The Securities
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 Statement
Establishing and Fixing the Rights and Preferences of FundPreferred Shares (the
"Statement") in substantially the forms filed as exhibits or otherwise included
in 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.
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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 Securities
by the Underwriters.
The Fund has entered into an Investment Management Agreement
with NAM dated as of April 4, 2007, an Amended and Restated Custodian Agreement
with State Street Bank and Trust Company dated as of February 25, 2005 and
amended as of June 29, 2007, and a Transfer Agency and Service Agreement with
State Street Bank and Trust Company dated as of October 7, 2006 and amended as
of June 26, 2007, will enter into an Auction Agency Request and Acceptance
Letter with the Bank of New York to be dated the Closing Date, incorporating the
Nuveen Auction Agency Agreement Basic Terms for Acting as the Auction Agent,
dated August 22, 2002 and such agreements are herein referred to as the
"Management Agreement," the "Custodian Agreement," and the "Transfer Agency
Agreement", the "Auction Agency Agreement", respectively, collectively, the
"Fund Agreements." NAM has entered into an Investment Subadvisory Agreement with
Santa Xxxxxxx dated as of June 19, 2007 (the "Santa Xxxxxxx Subadvisory
Agreement") and an Investment Subadvisory Agreement with NWQ dated as of June
25, 2007 (the "NWQ Subadvisory Agreement" and together with the Santa Xxxxxxx
Subadvisory Agreement, the "Subadvisory Agreements").
On June 20, 2007, Nuveen Investments, the parent of the
Advisers, announced that it had entered into a definitive Agreement and Plan of
Merger ("Merger Agreement") to be acquired by an investor group majority-led by
Xxxxxxx Xxxxxxxx Partners, LLC. The consummation of the merger, which is
expected to be completed by the end of the year, will be deemed to be an
"assignment" (as defined in the 1940 Act) of the Management Agreement and the
Subadvisory Agreements, and will result in the automatic termination of such
agreements. On July 31, 2007, the Board of Trustees of the Fund approved a new
Investment Management Agreement between the Fund and NAM (the "New Investment
Management Agreement") and an Interim Investment Management Agreement between
the Fund and NAM (the "Interim Management Agreement" and together with the New
Investment Management Agreement, the "New Management Agreements"), a new
Investment Subadvisory Agreement between NAM and Santa Xxxxxxx (the "New Santa
Xxxxxxx Investment Subadvisory Agreement") and an Interim Investment Subadvisory
Agreement between NAM and Santa Xxxxxxx (the "Interim Santa Xxxxxxx Subadvisory
Agreement" and together with the New Santa Xxxxxxx Investment Subadvisory
Agreement, the "New Santa Xxxxxxx Subadvisory Agreements"), a new Investment
Subadvisory Agreement between NAM and NWQ (the "New NWQ Investment Subadvisory
Agreement") and an Interim Investment Subadvisory Agreement between NAM and NWQ
(the "Interim NWQ Subadvisory Agreement" and together with the New NWQ
Investment Subadvisory Agreement, the "New NWQ Subadvisory Agreements") (the New
Santa Xxxxxxx Subadvisory Agreements together with the New NWQ Subadvisory
Agreements, the "New Subadvisory 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 333-144483 and 811-22058) on Form
N-2, including a related preliminary
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prospectus (including the statement of additional information
incorporated by reference therein), for registration under the Act and
the 1940 Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to
the Execution Time, has become effective. 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 file with the Commission a final prospectus (including
the statement of additional information incorporated by reference
therein) in accordance with Rule 497. As filed, such final prospectus
(including the statement of additional information incorporated by
reference therein) shall contain all information required by the Act
and the 1940 Act and the Rules and Regulations and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Fund has advised you, prior to the Execution Time, will be included
or made therein.
(b) Each Preliminary Prospectus complied when filed with the
Commission in all material respects with the provisions of the Act, the
1940 Act and the Rules and Regulations, and the Preliminary Prospectus
and the Rule 430A Information, when taken together as a whole, as of
the Execution Time, do not contain 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 a Preliminary 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 specifically for
inclusion therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in Section 9(b) hereof.
(c) On the Effective Date, the Registration Statement did, and
when the Prospectus is first filed 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; on the Effective Date [and at the
Execution Time], the Registration Statement did not and 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, 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
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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), it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in Section 9(b) hereof. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus.
(d) The Fund has been duly formed and is validly existing in
good standing as a business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, each Preliminary Prospectus and the Prospectus
(and any amendment or supplement to any of them) and is duly qualified
to do business and is in good standing under the laws of each
jurisdiction which requires such 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.
(e) The Fund's authorized equity capitalization is as set
forth in each Preliminary Prospectus and the Prospectus; the capital
shares of the Fund conform in all material respects to the description
thereof contained in each Preliminary Prospectus and the Prospectus;
all outstanding shares of beneficial interest of the Fund (the "Common
Shares") have been duly and validly authorized and issued and are fully
paid and nonassessable, except that, as set forth in the Registration
Statement and the Prospectus, shareholders of a Massachusetts business
trust may under certain circumstances be held personally liable for its
obligations of the Fund; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable, except that, as set forth in the Registration Statement
and the Prospectus, shareholders of a Massachusetts business trust may
under certain circumstances be held personally liable for the
obligations of the Fund; the certificates for the Securities are in
valid and sufficient form; and, except as set forth in each Preliminary
Prospectus and 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.
(f) The Fund, subject to the Registration Statement having
been declared effective and the filing of the Prospectus under Rule
497, has taken all required action under the Act, the 1940 Act and the
Rules and Regulations to make the public offering and consummate the
sale of the Securities as contemplated by this Agreement.
(g) There are no agreements, contracts, indentures, leases,
permits or other instruments that are required to be described in the
Registration Statement, any Preliminary Prospectus or the Prospectus,
or to be filed as an exhibit to the Registration Statement, which are
not described or filed as required by the Act, the 1940 Act or the
Rules and Regulations; the statements in the Registration Statement,
each Preliminary Prospectus and the Prospectus under the headings
"Description of Shares," "Description of FundPreferred Shares," "The
Auction," "Certain Provisions in the Declaration of Trust
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and By-Laws" and "Tax Matters" insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal maters, agreements,
documents or proceedings.
(h) The execution and delivery of, and the performance by the
Fund of its obligations under, this Agreement, the Fund Agreements and
the New Management 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, assuming due authorization,
execution and delivery thereof by the other parties thereto,
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 or principles of public policy and
subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles; and once duly executed and delivered by the Fund and NAM,
and, in the case of the New Investment Management Agreement, approved
by the shareholders of the Fund, the New Management Agreements will
constitute the valid and legally binding agreements of the Fund,
assuming due authorization, execution and delivery thereof by the other
parties thereto, 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 or principles of public
policy and subject to the qualification that the enforceability of the
Fund's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles.
(i) The Fund is duly registered under the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission. The Fund has not
received any notice from the Commission pursuant to Section 8(e) of the
1940 Act with respect to the 1940 Act Notification or the Registration
Statement.
(j) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements or
the New Management Agreements, except such as have been made or
obtained under the Act, the 1940 Act, the rules and regulations of the
NASD and the NYSE, and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated herein
and in each Preliminary Prospectus and the Prospectus.
(k) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements or the New Management Agreements, nor the consummation of
the transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, conflict with, result in a breach or
violation of, or imposition of any material lien, charge or encumbrance
upon any property or assets of the Fund pursuant to, (i) the
Declaration of Trust, the Statement or by-laws of
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the Fund, (ii) the terms of any material indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Fund is a party or bound or to which its property is subject, or (iii)
materially violates or will materially violate any material statute,
law, rule, regulation, judgment, order or decree applicable to the Fund
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Fund
or any of its properties.
(l) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(m) The financial statements, together with related schedules
and notes, included or incorporated by reference in each Preliminary
Prospectus, the Prospectus and the Registration Statement present
fairly, in all material respects, the financial condition and results
of operations 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, each Preliminary
Prospectus and the Prospectus are accurately derived from such
financial statements and the books and records of the Fund.
(n) 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 prospects, earnings, business,
properties, net assets or results of operations of the Fund (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 contemplated in each Preliminary Prospectus
and the Prospectus.
(o) The Fund owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(p) The Fund is not in violation or default of any provision
of its Declaration of Trust, the Statement or by-laws, (i) or in
material violation of (ii) the terms of any material 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) any material statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Fund or any of its properties.
(q) Since the date as of which information is given in each
Preliminary Prospectus and Prospectus, except as otherwise stated
therein, (i) there has been no material, adverse
7
change in the condition (financial or other), business prospects,
earnings, business or properties of the Fund, (other than as a result
of a change in the financial markets generally) whether or not arising
in the ordinary course of business and (ii) there have been no
transactions entered into by the Fund which are material to the Fund
other than those in the ordinary course of its business as described in
each Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto).
(r) Xxxxx & Young LLP, who have audited the financial
statements of the Fund and delivered their report with respect to the
audited financial statements included or incorporated by reference in
the Registration Statement, each Preliminary Prospectus and the
Prospectus, is an independent registered public accounting firm with
respect to the Fund within the meaning of the Act, the 1940 Act and the
Rules and Regulations.
(s) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, each Preliminary Prospectus, the Prospectus or
other materials permitted by the Act, the 1940 Act or the Rules and
Regulations.
(t) 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 Securities
(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.
(u) The Fund's trustees 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 and fidelity bond as and when such coverage
and fidelity bond expires or to obtain similar coverage and fidelity
bond 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 prospects, earnings,
business, properties, net assets or results of operations of the Fund
(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 contemplated in each
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto).
8
(v) The Fund possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business, and
the Fund has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, permit or
authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), business prospects,
earnings, business or properties of the Fund (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 contemplated in each Preliminary Prospectus and the
Prospectus.
(w) 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. The Fund employs
"internal controls over financial reporting" (as such term is defined
in Rule 30a-3 under the 1940 Act) and such internal controls over
financial reporting are effective as required the 1940 Act and the 1940
Act Rules and Regulations. The Fund is not aware of any material
weakness in its internal control over financial reporting.
(x) 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 as required under the
1940 Act and the 1940 Act Rules and Regulations.
(y) Except as stated in this Agreement and as described in 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 violation of
federal securities laws, in stabilization or manipulation of the price
of any security of the Fund to facilitate the sale or resale of the
Securities, and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(z) This Agreement, each of the Fund Agreements, the New
Management Agreements, the Subadvisory Agreements and the New
Subadvisory Agreements complies in all material respects with all
applicable provisions, the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and
Regulations and the Fund's trustees and the Fund's sole shareholder
have approved the Management Agreement and the Subadvisory Agreements
in accordance with Sections 15 (a) and (c), respectively, of the 1940
Act.
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(aa) Except as disclosed in each Preliminary Prospectus and
the Prospectus, no trustee of the Fund is an "interested person" (as
defined in the 1940 Act) of the Fund or an "affiliated person" (as
defined in the 1940 Act) of any Underwriter listed in Schedule I
hereto.
(bb) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with
the requirements of Subchapter M of the Code.
(cc) The conduct by the Fund of its business (as described in
each 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.
(dd) The Fund has filed all foreign, federal, state and local
tax returns required to be filed or has properly requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), business prospects, earnings, business or properties of the
Fund (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 contemplated in each
Preliminary Prospectus and the Prospectus) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a material
adverse effect on the condition (financial or otherwise), business
prospects, earnings, business or properties of the Fund (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 contemplated in each Preliminary Prospectus
and the Prospectus; 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.
(ee) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Fund or
sale by the Fund of the Securities.
(ff) Except as disclosed in the Registration Statement, each
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 Securities
hereunder to repay any outstanding debt owed to any affiliate of
Citigroup Global Markets Holdings Inc.
(gg) There is and has been no failure on the part of the Fund
and any of the Fund's trustees or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated in connection therewith (the
"Xxxxxxxx-Xxxxx Act").
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(hh) 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 Rule 38a-1 under the 1940
Act) by the Fund, including policies and procedures that provide
oversight of compliance by each investment adviser and transfer agent
of the Fund.
(ii) The Fund will comply with the asset coverage requirements
of the 1940 Act and the FundPreferred Shares Basic Maintenance Amount
(as defined in the Statement) immediately after the issuance of the
FundPreferred Shares and after giving effect to the issuance of the
FundPreferred Shares.
Any certificate signed by any officer of the Fund and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Fund, as to matters covered therein, to each Underwriter.
2. Representations and Warranties of the Advisers. Each of
NAM, Santa Xxxxxxx and NWQ, severally as to itself only and not jointly or as to
any other party, represents and warrants to, and agrees with, each Underwriter
as follows:
(a) Such Adviser has been duly formed and is validly existing
in good standing under the laws of the jurisdiction of its
organization, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, each Preliminary Prospectus and the Prospectus,
and is duly qualified to do business and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to so qualify does not have a material adverse effect
on the condition (financial or other), business, properties or results
of operations of such Adviser.
(b) NAM is duly registered as an investment adviser under the
Advisers Act and the NAM is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Management Agreement, the New
Management Agreements, the Subadvisory Agreements, and the New
Subadvisory Agreements and Santa Xxxxxxx is duly registered as an
investment adviser under the Advisers Act and Santa Xxxxxxx 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 Santa Xxxxxxx Subadvisory Agreement and the New Santa Xxxxxxx
Subadvisory Agreements and NWQ is duly registered as an investment
adviser under the Advisers Act and NWQ 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 NWQ
Subadvisory Agreement and the New NWQ Subadvisory Agreements, as
contemplated by each Preliminary Prospectus and the Prospectus.
(c) NAM has full power and authority to enter into this
Agreement, the Management Agreement, the New Management Agreements, the
Subadvisory Agreements and the New Subadvisory Agreements and Santa
Xxxxxxx has full power and authority to enter into this Agreement, the
Santa Xxxxxxx Subadvisory Agreement and the
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New Santa Xxxxxxx Subadvisory Agreements and NWQ has full power and
authority to enter into this Agreement, the NWQ Subadvisory Agreement
and the New NWQ Subadvisory Agreements; the execution and delivery of,
and the performance by NAM of its obligations under, this Agreement,
the Management Agreement and the Subadvisory Agreements have been duly
and validly authorized by NAM and the execution and delivery of, and
the performance by Santa Xxxxxxx of its obligations under, this
Agreement, the Santa Xxxxxxx Subadvisory Agreement and the New Santa
Xxxxxxx Subadvisory Agreements, have been duly and validly authorized
by Santa Xxxxxxx and the execution and delivery of, and the performance
by NWQ of its obligations under, this Agreement, the NWQ Subadvisory
Agreement and the New NWQ Subadvisory Agreements, have been duly and
validly authorized by NWQ; and this Agreement, the Management Agreement
and the Subadvisory Agreements have been duly executed and delivered by
NAM and this Agreement, the Santa Xxxxxxx Subadvisory Agreement and the
NWQ Subadvisory Agreement have been duly executed and delivered by
Santa Xxxxxxx and NWQ, and each such agreement constitutes the valid
and legally binding agreement of such Adviser, enforceable against such
Adviser in accordance with its 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; once duly executed and delivered by the Fund and
NAM, and, in the case of the New Investment Management Agreement,
approved by the shareholders of the Fund, the New Management Agreements
will constitute the valid and legally binding agreements of NAM,
assuming due authorization, execution and delivery thereof by the other
parties thereto, enforceable against NAM in accordance with their
terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of
NAM'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; and, once duly executed and delivered by NAM,
Santa Xxxxxxx and NWQ, and, in the case of the New Santa Xxxxxxx
Investment Subadvisory Agreement and the New NWQ Subadvisory Agreement,
approved by the shareholders of the Fund, the New Subadvisory
Agreements will constitute the valid and legally binding agreements of
such Adviser, assuming due authorization, execution and delivery
thereof by the other parties thereto, 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 or principles of public policy 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 each Preliminary Prospectus and the Prospectus and
under this Agreement, the Management Agreement, the New Management
Agreements, the Subadvisory Agreements and the New Subadvisory
Agreements, as applicable.
12
(e) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement,
each Preliminary Prospectus and the Prospectus complied and comply in
all material respects with the provisions of the Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving such
Adviser or its property is pending or, to the best knowledge of such
Adviser, threatened that (i) is required to be described in each
Preliminary Prospectus and the 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 Management Agreement, the New Management
Agreements, the Subadvisory Agreements or the New Subadvisory
Agreements, as applicable or (iii) could reasonably be expected to have
a material adverse effect on the condition (financial or otherwise),
business prospects, earnings, business or properties of such Adviser,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in each Preliminary
Prospectus and the Prospectus; 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, each 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.
(g) Since the date as of which information is given in each
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, earnings, business
or properties 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 each
Preliminary Prospectus and the Prospectus.
(h) Such Adviser possesses all licenses, certificates, permits
and other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business, and
has not received any notice of proceedings relating to the revocation
or modification of any such license, certificate, permit or
authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), business prospects,
earnings, business or properties of such Adviser, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in each Preliminary Prospectus and the
Prospectus.
(i) This Agreement, the Management Agreement, the New
Management Agreements, the Subadvisory Agreements and the New
Subadvisory Agreements comply in all material respects with all
applicable provisions of the 1940 Act, the 1940 Rules and Regulations,
the Advisers Act and the Advisers Act Rules and Regulations.
13
(j) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Management
Agreement, the New Management Agreements, the Subadvisory Agreements
and the New Subadvisory Agreements, except such as have been made or
obtained under the Act and the 1940 Act, the rules and regulations of
the NASD and the NYSE, and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in each Preliminary Prospectus and the
Prospectus.
(k) Neither the execution, delivery or performance of this
Agreement or the Management Agreement, the New Management Agreement,
the Subadvisory Agreement and the New Subadvisory Agreements nor the
consummation of the transactions herein or therein contemplated, nor
the fulfillment of the terms hereof or thereof, conflict with, result
in a breach or violation of, or imposition of any material lien, charge
or encumbrance upon any property or assets of any Adviser pursuant to,
(i) the Organizational Documents of such Adviser, (ii) the terms of any
material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which such Adviser is a party or bound or to
which its property is subject, or (iii) any material statute, law,
rule, regulation, judgment, order or decree applicable to such Adviser
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over such
Adviser or any of its properties.
(l) Except as stated in this Agreement and as described 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 violation of
federal securities laws, in stabilization or manipulation of the price
of any security of the Fund to facilitate the sale or resale of the
Securities, and such Adviser is not aware of any such action taken or
to be taken by any affiliates of such Adviser.
(m) In the event that the Fund or such Adviser makes available
any promotional materials related to the Securities or the transactions
contemplated hereby intended for use only by registered broker-dealers
and registered representatives thereof by means of an Internet web site
or similar electronic means, such Adviser will install and maintain or
will cause to be installed and maintained, pre-qualification and
password-protection or similar procedures which are reasonably designed
to effectively prohibit access to such promotional materials by persons
other than registered 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 Securities shall be deemed a
representation and warranty by such Adviser, as to matters covered
therein, to each Underwriter.
14
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 $24,750 per
share, the amount of the Securities set forth opposite such Underwriter's name
in Schedule I hereto.
4. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on [ ], 2007 or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Fund or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Securities 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 Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, agree with the several Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Fund will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Fund has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement to which you object. 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 (i) 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, (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting
to its use or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Fund of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Fund will use its reasonable best
efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or
15
notice of objection, to obtain as soon as possible the withdrawal of
such stop order or relief from such occurrence or objection, including,
if necessary, by filing an amendment to the Registration Statement or a
new registration statement and using its reasonable best efforts to
have such amendment or new registration statement declared effective as
soon as practicable.
(b) If, at any time when a prospectus relating to the
Securities is required to be filed or 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 at such time 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 (i) notify
the Representatives of any such event; (ii) 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 (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Fund will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Fund which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) In cooperation with the Underwriters, the Fund will
arrange, if necessary, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Securities; provided that in no
event shall the Fund be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) Except as provided in this Agreement, the Fund will not,
without the prior written consent of Citigroup Global Markets Inc.,
offer, sell, contract to sell, pledge, or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Fund or any affiliate of the Fund or any person in privity with
the Fund, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or
16
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 Securities or any securities convertible into, or
exercisable, or exchangeable for, senior securities other than the
Securities; 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 and provided that the Fund may issue senior securities
representing indebtedness (as defined in the 1940 Act) as provided in
the Preliminary Prospectus and Prospectus.
(g) 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 reasonable best
efforts to cause the Fund's trustees and officers, in their capacities
as such, to comply with such laws, rules and regulations, including,
without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) Except as stated in this Agreement and as described in the
Preliminary Prospectus and the Prospectus, the Fund and the Advisers
will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, other than such actions as taken by
the Underwriters that are affiliates of the Fund or the Adviser, so
long as such actions are in material compliance with all applicable
law.
(i) The Fund agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus and the 1940 Act Notification and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, any sales
material and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Fund (iv)
any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (v) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum, dealer agreements
and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (vi) any
registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii)
any filings required to be made with the NASD (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Fund's accountants and the fees and expenses
of counsel (including
17
local and special counsel) for the Fund; (x) any expenses and fees for
the cost of Ratings Agencies (as defined below); (xi) 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 Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in each Preliminary Prospectus and the 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 Securities, prior to the Closing
Date, to be assigned a rating of 'AAA' by Standard & Poor's Ratings
Services ("S&P") and 'Aaa" by Xxxxx'x Investors Service, Inc.
("Xxxxx'x", together with S&P, the "Rating Agencies").
(n) The Fund will furnish to you (i) a certificate showing
compliance with the asset coverage requirements of the 1940 Act as of
the Closing Date and (ii) a certificate with respect to the calculation
of the FundPreferred Shares Basic Maintenance Amount (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
certificate shall assume the receipt of net proceeds from the sale of
the Securities.
18
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities 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, 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 or to the satisfaction of the
Representatives' waiver in writing of the following additional conditions:
(a) The Prospectus any supplements thereto have been 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 any
notice objecting to its use 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 by the Commission, 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, to have
furnished to the Representatives its opinion, dated the Closing Date
and addressed to the Representatives, to the effect that:
(i) The Fund (i) has been formed and is validly
existing under the Fund's Declaration 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," (ii) is in good
standing with the Secretary of the Commonwealth of
Massachusetts, and (iii) 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 Securities have been duly authorized by the
Fund for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered to the
Underwriters against payment therefor in accordance with the
terms of the Underwriting Agreement, will be validly issued,
fully paid and nonassessable, except that, as set forth in the
Registration Statement, shareholders of a Massachusetts
business trust may under certain circumstances be held liable
for its obligations, and are free of any statutory preemptive
rights. Except as set forth in the Declaration and the
Statement, as of the date hereof, there are no restrictions
upon the transfer of any Securities pursuant to the
Declaration 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 Certificate complies as to form with all requirements of
Massachusetts law;
(iii) The description of the authorized shares of
beneficial interest of the Fund contained under the caption
"Description of Common Shares" in the Preliminary Prospectus
and the Prospectus conforms in all material respects as to
legal matters to the terms thereof contained in the
Declaration of Trust. The
19
statements in the first two paragraphs under the caption
"Certain Provisions in the Declaration of Trust" in the
Prospectus, to the extent that they constitute descriptions of
Massachusetts law, are in summary form accurate in all
material respects. The description of the Securities contained
under the captions "Description of FundPreferred Shares" and
"The Auction" in the 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 the
Statement;
(iv) The Outstanding Common Shares, as defined in the
Xxxxxxx XxXxxxxxx Opinion, have been duly authorized by the
Fund and validly issued, are fully paid and nonassessable,
except that, as set forth in the Registration Statement,
shareholders of a Massachusetts business trust may under
certain circumstances be held liable for its obligations, and
are free of any statutory preemptive rights;
(v) The Registration Statement is effective under the
1933 Act and was filed under the 1940 Act; any required filing
of the Prospectus pursuant to Rule 497 of the 1933 Act Rules
and Regulations has been made within the time periods required
by Rule 497; no stop-order suspending the effectiveness of the
Registration Statement or order pursuant to Section 8(e) of
the 1940 Act has been issued and to the best of such counsel's
knowledge, no proceeding for any such purpose has been
instituted or is pending or threatened in writing by the
Commission;
(vi) The Fund's 1940 Act Notification, the
Registration Statement and the Prospectus and each amendment
or supplement to the Registration Statement and the Prospectus
as of their respective issue dates (except the financial
statements and other financial data contained therein, as to
which such counsel express no opinion) comply as to form in
all material respects with the requirements of the 1933 Act,
the 1940 Act and the Rules and Regulations;
(vii) The statements made in the Preliminary
Prospectus and the Prospectus under the captions "The Auction"
and "Description of FundPreferred Shares" insofar as they
purport to summarize the provisions of the Statement or other
documents or agreements specifically referred to therein,
constitute accurate summaries of the terms of the Statement 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 "Federal Income Tax
Matters," insofar as they constitute matters of law 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;
20
(ix) Based solely on a review of our litigation
docket, 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, there
are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit to the Registration Statement that are not described
or filed as required by the Act, the 1940 Act or the Rules and
Regulations.
(xi) Each of the New Management Agreements have been
duly authorized and validly authorized by the Fund and this
Agreement and the Fund Agreements have each been duly and
validly authorized, executed and delivered by the Fund, each
of the Fund Agreements and the New Management Agreements
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) Each of the Subadvisory Agreements and the New
Subadvisory Agreements 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;
(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, the 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 Securities
by the Fund pursuant to this Agreement, the execution and
delivery of this Agreement or any of the Fund Agreements by
the Fund, or the performance by the Fund of its agreements
under this Agreement or any of the Fund Agreements or any of
the New Management Agreements (A) requires any consent,
approval, authorization or other order of or registration or
filing with, the Commission, the National Association of
Securities Dealers, Inc., or any national securities exchange,
or governmental body or agency, or arbitrator or court of the
United States of America, State of Illinois or the
Commonwealth of Massachusetts (except (1) the absence of
which, either individually or in the aggregate, would not have
a material adverse effect on the Fund; (2) such as may have
been obtained prior to the date hereof; and (3) such as may be
required for compliance with the New York Stock Exchange or
state securities or Blue Sky laws of various jurisdictions in
accordance with this Agreement) or (B) violates or will
violate or constitutes or will constitute a breach of any of
the provisions of the Declaration of Trust, the
21
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 us to
which the Fund is party or by which it or any of its
properties may be bound, or violates any existing material
United States of America, State of Illinois or the
Commonwealth of Massachusetts statute, law, regulation
(assuming compliance with all applicable state securities and
Blue Sky laws), or judgment, injunction, order or decree known
to us and applicable to the Fund or any of its properties, or
will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the
Fund pursuant to the terms of any agreement or instrument
known to us to which the Fund is a party or by which it or any
of its property or assets is bound. To the best of our
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; and
(xiv) No holder of any security of the Fund has any
right pursuant to any agreement known to us to which the Fund
is a party to require registration of shares of beneficial
interest, the Securities or any other security of the Fund
because of the filing of the Registration Statement or
consummation of the transactions contemplated by this
Agreement.
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 contained 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 Securities on [ ], 2007 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 Preliminary Prospectus and 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 rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Illinois or the Federal laws
22
of the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of Xxxxxxx XxXxxxxxx LLP or other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Fund and public officials. References to the Prospectus
in this paragraph (b) shall also include any supplements thereto at the
Closing Date.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx X. Xxxxxxxxx, Managing Director, Assistant Secretary and Associate
General Counsel of NAM, or Xxxxx X. XxXxxxxx, Vice President and Secretary of
NAM, dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) NAM has been duly incorporated and is validly existing
in good standing as a corporation 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 each
Preliminary Prospectus and the Prospectus, and is duly qualified to do
business and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to so
qualify does not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
NAM;
(ii) NAM is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or
the 1940 Act Rules and Regulations from acting under the Management
Agreement, the New Management Agreements, the Subadvisory Agreements
and the New Subadvisory Agreements as contemplated by each Preliminary
Prospectus and the Prospectus;
(iii) NAM has full corporate power and authority to enter
into this Agreement, the Management Agreement, the New Management
Agreements, the Subadvisory Agreements and the New Subadvisory
Agreements;
(iv) This Agreement has been duly authorized, executed and
delivered by XXX;
(v) The New Management Agreements and the New Subadvisory
Agreements have been duly authorized by NAM; the Management Agreement
and the Subadvisory Agreements have been duly authorized, executed and
delivered by NAM and the Management Agreement and the Subadvisory
Agreements are each a valid and legally binding agreement of NAM,
assuming due authorization, execution and delivery by the other parties
thereto, enforceable against NAM in accordance with its terms subject
to the qualification that the enforceability of NAM'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; once duly executed and
delivered by the Fund and NAM, and, in the case of the New Investment
Management Agreement, approved by the shareholders of the Fund, the New
Management Agreements will constitute the valid and legally binding
agreements of
23
NAM, assuming due authorization, execution and delivery thereof by the
other parties thereto, enforceable against NAM in accordance with their
terms subject to the qualification that the enforceability of NAM'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; and
once duly executed and delivered by XXX, Santa Xxxxxxx and NWQ, and, in
the case of the New Santa Xxxxxxx Investment Subadvisory Agreement and
the New NWQ Subadvisory Agreement, approved by the shareholders of the
Fund, the New Subadvisory Agreements will constitute the valid and
legally binding agreements of NAM, assuming due authorization,
execution and delivery thereof by the other parties thereto,
enforceable against NAM in accordance with their terms subject to the
qualification that the enforceability of NAM'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;
(vi) This Agreement, the Management Agreement, the New
Management Agreements, the Subadvisory Agreements and the New
Subadvisory Agreements comply in all material respects with all
applicable provisions of the Act, the 1940 Act, the Advisers Act, the
Rules and Regulations and the Advisers Act Rules and Regulations;
(vii) Neither the execution or delivery of this Agreement,
the Management Agreement, the New Management Agreements, the
Subadvisory Agreements or the New Subadvisory Agreements nor the
consummation of the transactions herein or therein contemplated, nor
the fulfillment of the terms hereof or thereof, result in a breach or
violation of, or imposition of any material lien, charge or encumbrance
upon any property or assets of NAM pursuant to, (i) the Organizational
Documents of NAM, (ii) the terms of any material indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which NAM
is a party or bound or to which its property is subject that is known
to such counsel after reasonable inquiry or (iii) any material statute,
law, rule, regulation, judgment, order or decree that is known to such
counsel after reasonable inquiry applicable to the Adviser of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over NAM or any of
its properties;
(viii) The description of NAM and its business in each
Preliminary Prospectus and the Prospectus complies in all material
respects with the provisions of the Act, the 1940 Act and the Rules and
Regulations;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, other than as described or contemplated in the
Preliminary Prospectus or the Prospectus, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property required to be disclosed in the Registration
Statement which is not adequately disclosed in each Preliminary
Prospectus and the Prospectus, and there are no agreements, contracts,
indentures, leases, permits or other instruments required to be
described in the Registration Statement, each Preliminary Prospectus or
the Prospectus,
24
or to be filed as an exhibit to the Registration Statement, which are
not described or filed as required;
(x) NAM owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary to carry on its
business as contemplated in the Preliminary Prospectus and the
Prospectus;
(xi) No material consent, approval, authorization, filing
with or order of any court or governmental agency or body is required
on the part of NAM in connection with the transactions contemplated
herein or in the Management Agreement, the New Management Agreements,
the Subadvisory Agreements and the New Subadvisory Agreements, except
such as have been made or obtained or as may be required under the Act,
the 1940 Act and the Advisers Act, the rules and regulations of the
NASD and the NYSE and under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and each Preliminary Prospectus; and
(xii) Although such counsel has not undertaken, except as
otherwise indicated herein, to determine independently, and such
counsel does not assume any responsibility for, the accuracy and
completeness of the statements in the Registration Statement, the
Preliminary Prospectus and the Prospectus, such counsel and other
members of the legal department have 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 such counsel's attention that has caused such
counsel to believe that (a) the Registration Statement, at the time it
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) the
Preliminary Prospectus as of the time of the pricing of the offering of
the Securities, included any 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, and (c) the Prospectus as of its date and on
the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than
the financial statements and the notes thereto and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of responsible officers
of NAM and public officials. References to the Prospectus in this
paragraph (c) shall also include any supplements thereto at the Closing
Date.
25
(d) You shall have received on the Closing Date an opinion of
Xxxx X. XxxXxxxxx, Senior Vice President and General Counsel of Nuveen
Investments, Inc. as counsel for Santa Xxxxxxx, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) Santa Xxxxxxx has been duly formed and is validly
existing in good standing as a limited liability company under the laws
of the State of Delaware, with full power and authority to own, lease
and operate its properties and to conduct its business as described in
each Preliminary Prospectus and the Prospectus, and is duly qualified
to do business and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to so qualify does not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of Santa Xxxxxxx;
(ii) Santa Xxxxxxx is duly registered with the
Commission as an investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules
and Regulations or the 1940 Act Rules and Regulations from acting under
the Santa Xxxxxxx Subadvisory Agreement or the New Santa Xxxxxxx
Subadvisory Agreements as contemplated by each Preliminary Prospectus
and the Prospectus;
(iii) Santa Xxxxxxx has full power and authority to
enter into this Agreement, the Santa Xxxxxxx Subadvisory Agreement and
the New Santa Xxxxxxx Subadvisory Agreements;
(iv) This Agreement has been duly authorized, executed
and delivered by Santa Xxxxxxx;
(v) The New Santa Xxxxxxx Subadvisory Agreements have
been duly authorized by Santa Xxxxxxx; the Santa Xxxxxxx Subadvisory
Agreement has been duly authorized, executed and delivered by Santa
Xxxxxxx and the Santa Xxxxxxx Subadvisory Agreement is a valid and
legally binding agreement of Santa Xxxxxxx, and assuming due
authorization, execution, and delivery by the other parties thereto,
enforceable against Santa Xxxxxxx in accordance with its terms subject
to the qualification that the enforceability of Santa Barbara'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; and
once duly executed and delivered by Santa Xxxxxxx and NAM, and, in the
case of the New Santa Xxxxxxx Investment Subadvisory Agreement,
approved by the shareholders of the Fund, the New Santa Xxxxxxx
Subadvisory Agreements will constitute the valid and legally binding
agreements of Santa Xxxxxxx, assuming due authorization, execution and
delivery thereof by the other parties thereto, enforceable against
Santa Xxxxxxx in accordance with their terms subject to the
qualification that the enforceability of Santa Barbara'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;
26
(vi) This Agreement, the Santa Xxxxxxx Subadvisory
Agreement and the New Santa Xxxxxxx Subadvisory Agreements comply in
all material respects with all applicable provisions of the Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers
Act Rules and Regulations;
(vii) Neither the execution or delivery of this
Agreement, the Santa Xxxxxxx Subadvisory Agreement or the New Santa
Xxxxxxx Subadvisory Agreements nor the consummation of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof result in a breach or violation of, or imposition of any
material lien, charge or encumbrance upon any property or assets of
Santa Xxxxxxx pursuant to, (i) the Organizational Documents of Santa
Xxxxxxx, (ii) the terms of any material indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which Santa
Xxxxxxx is a party or bound or to which its property is subject that is
known to such counsel after reasonable inquiry, or (iii) any material
statute, law, rule, regulation, judgment, order or decree that is known
to such counsel after reasonable inquiry applicable to Santa Xxxxxxx of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over Santa Xxxxxxx or
any of its properties;
(viii) The description of Santa Xxxxxxx and its business
in each Preliminary Prospectus and the Prospectus complies in all
material respects with all requirements of the Act, the 1940 Act and
the Rules and Regulations;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, other than as described or contemplated in the
Preliminary Prospectus or the Prospectus, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
Santa Xxxxxxx or its property of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in each
Preliminary Prospectus or the Prospectus, and there are no agreements,
contracts, indentures, leases, permits or other instruments of a
character required to be described in the Registration Statement, each
Preliminary Prospectus or the Prospectus, or to be filed as an exhibit
to the Registration Statement, which are not described or filed as
required;
(x) Santa Xxxxxxx owns, possess or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary to carry on
its business as contemplated in the Preliminary Prospectus and the
Prospectus;
(xi) No material consent, approval, filing with or order
of any court or governmental agency or body is required on the part of
Santa Xxxxxxx in connection with the transactions contemplated herein
or in the Santa Xxxxxxx Subadvisory Agreement and the New Santa Xxxxxxx
Subadvisory Agreements except such as have been made or obtained under
the Act, the 1940 Act and the Advisers Act, the rules and regulations
of the NASD and the NYSE and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the
27
Underwriters in the manner contemplated in this Agreement and in each
Preliminary Prospectus and the Prospectus; and
(xii) Although such counsel has not undertaken, except
as otherwise indicated herein, to determine independently, and such
counsel does not assume any responsibility for, the accuracy and
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 such
counsel's attention that has caused such counsel to believe that (a) on
the Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (b) the Preliminary Prospectus as of the time
of the pricing of the offering of the Securities, included any 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, and (c) the
Prospectus as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and other financial
and statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters, and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of Santa Xxxxxxx and public officials. References to the
Prospectus in this paragraph (d) shall also include any supplements
thereto at the Closing Date.
(e) You shall have received on the Closing Date an opinion of
Xxxx X. XxxXxxxxx, Senior Vice President and General Counsel of Nuveen
Investments, Inc. as counsel for NWQ, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) NWQ has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the
State of Delaware, with full power and authority to own, lease and
operate its properties and to conduct its business as described in each
Preliminary Prospectus and the Prospectus, and is duly qualified to do
business and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to so
qualify does not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
NWQ;
(ii) NWQ is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the
28
Advisers Act Rules and Regulations or the 1940 Act Rules and
Regulations from acting under the NWQ Subadvisory Agreement or the New
NWQ Subadvisory Agreements as contemplated by each Preliminary
Prospectus and the Prospectus;
(iii) NWQ has full power and authority to enter into this
Agreement, the NWQ Subadvisory Agreement and the New NWQ Subadvisory
Agreements;
(iv) This Agreement has been duly authorized, executed and
delivered by NWQ;
(v) The New NWQ Subadvisory Agreements have been duly
authorized by NWQ; the NWQ Subadvisory Agreement has been duly
authorized, executed and delivered by NWQ and the NWQ Subadvisory
Agreement is a valid and legally binding agreement of NWQ, and assuming
due authorization, execution and delivery by the other parties thereto,
enforceable against NWQ in accordance with its terms subject to the
qualification that the enforceability of NWQ's obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and
by general equitable principles; and once duly executed and delivered
by NWQ and NAM, and, in the case of the New NWQ Investment Subadvisory
Agreement, approved by the shareholders of the Fund, the New NWQ
Subadvisory Agreements will constitute the valid and legally binding
agreements of NWQ, assuming due authorization, execution and delivery
thereof by the other parties thereto, enforceable against NWQ in
accordance with their terms subject to the qualification that the
enforceability of NWQ's obligations thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
(vi) This Agreement and the NWQ Subadvisory Agreement
comply in all material respects with all applicable provisions of the
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations;
(vii) Neither the execution or delivery of this Agreement,
the NWQ Subadvisory Agreement or the New NWQ Subadvisory Agreements nor
the consummation of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof, result in a breach
or violation of, or imposition of any material lien, charge or
encumbrance upon any property or assets of NWQ pursuant to, (i) the
Organizational Documents of NWQ, (ii) the terms of any material
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which NWQ is a party or bound or to which its property is
subject that is known to such counsel after reasonable inquiry, or
(iii) any material statute, law, rule, regulation, judgment, order or
decree that is known to such counsel after reasonable inquiry
applicable to NWQ of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over NWQ or any of its properties;
29
(viii) The description of NWQ and its business in each
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the Rules
and Regulations;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, other than as described or contemplated in the
Preliminary Prospectus or the Prospectus, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving NWQ
or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in each
Preliminary Prospectus or the Prospectus, and there are no agreements,
contracts, indentures, leases, permits or other instruments of a
character required to be described in the Registration Statement, each
Preliminary Prospectus or the Prospectus, or to be filed as an exhibit
to the Registration Statement, which are not described or filed as
required;
(x) NWQ owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations as are necessary to carry on its
business as contemplated in the Preliminary Prospectus and the
Prospectus;
(xi) No material consent, approval, filing with or order
of any court or governmental agency or body is required on the part of
NWQ in connection with the transactions contemplated herein or in the
NWQ Subadvisory Agreement and the New NWQ Subadvisory Agreements,
except such as have been made or obtained under the Act, the 1940 Act
and the Advisers Act, the rules and regulations of the NASD and the
NYSE and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this
Agreement and in each Preliminary Prospectus and the Prospectus; and
(xii) Although such counsel has not undertaken, except as
otherwise indicated herein, to determine independently, and such
counsel does not assume any responsibility for, the accuracy and
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 such
counsel's attention that has caused such counsel to believe that (a) on
the Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (b) the Preliminary Prospectus as of the time
of the pricing of the offering of the Securities, included any 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, and (c) the
Prospectus as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and other financial
30
and statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters, and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of NWQ and public officials. References to the Prospectus in
this paragraph (d) shall also include any supplements thereto at the
Closing Date.
(f) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the 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.
(g) Each of the Fund and the Advisers shall have furnished to
the Representatives a certificate, signed by the President, Managing Director or
Vice President and the Controller, Treasurer, Assistant Treasurer, Chief
Financial Officer or Chief 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,
each Preliminary Prospectus and the Prospectus, any amendments or supplements
thereto and this Agreement and that:
(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
(to the extent not waived in writing by the Representatives);
(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 Adviser's 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 thereto) (with
respect to the certificates of the Advisers), there has been no
material adverse effect on the condition (financial or otherwise),
business prospects, earnings, business, properties, net assets or
results of operations of the Fund or each of the Advisers, as the case
may be,
31
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in each Preliminary
Prospectus and the Prospectus.
(h) The Fund shall have requested and caused Ernst & Young 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 stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement,
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; and
(ii) 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, each Preliminary Prospectus and the Prospectus,
including the information set forth under the captions "Summary of Fund
Expenses" in the Prospectus, agrees with the accounting records of the
Fund, excluding any questions of legal interpretation.
References to the Preliminary Prospectus and the Prospectus in
this paragraph (h) include any supplement thereto at the date of the letter.
(i) 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 (h) of this Section 7 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), business prospects, earnings, business, properties,
net assets or results of operations of the Fund (other than as a result of a
change in the financial markets generally) and each of the Advisers, whether or
not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in each 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 Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof), each Preliminary Prospectus and
the Prospectus (exclusive of any supplement thereto).
(j) The Fund shall have delivered to the Representatives
evidence satisfactory to the Representatives that the shares are rated 'AAA' by
S&P 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
potential downgrading, in the rating accorded to the Securities by either Rating
Agency.
32
(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.
(l) 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.
(m) The documents required to be delivered by this Section 7
shall be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the
Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
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 Advisers will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Fund and the
Advisers, jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, 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 Securities 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 thereof or supplement
thereto, 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
33
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,
trustees, 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
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities (ii) the
sentences related to concessions and reallowances and (iii) the statements set
forth under the sub-heading "Securities and Exchange Commission Settlements"
constitute the only information furnished in writing by or on behalf of the
several Underwriters specifically for inclusion in any Preliminary Prospectus or
the Prospectus. The parties acknowledge that any indemnification of the
Underwriters by the Fund will be subject to the requirements of Section 17(i) of
the 1940 Act.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
34
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) 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 and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Fund, the
Advisers and the Underwriters severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Fund and the Advisers on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Fund and the Advisers shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by the Fund, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund and the Advisers on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Fund, the Advisers and the Underwriters agree
that it would not be just and equitable if contribution 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 (or,
with respect to the Fund, trustee) 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).
35
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, 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 Securities, if
at any time prior to such time (a) trading in the Fund's Common Shares shall
have been suspended by the Commission or the NYSE or trading in securities
generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on the NYSE, (b) a banking moratorium shall have
been declared either by Federal or New York State authorities or (c) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by each 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, directors, employees, agents
or controlling persons referred to in Section 9 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 8 and 9
hereof shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the
36
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; if sent to the Fund or NAM,
will be mailed, delivered or telefaxed to the Fund (fax no.: (000) 000-0000) and
confirmed to the General Counsel at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000; if sent to Santa Xxxxxxx, will be mailed, delivered or telefaxed to (fax
no.: (000) 000-0000) and confirmed to the President at 000 X. Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000; or if sent to NWQ, will be mailed,
delivered or telefaxed to (fax no.: (000) 000-0000) and confirmed to the Vice
President at 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
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. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Waiver of Jury Trial. Each of the Fund and Advisers and
the Underwriters hereby irrevocably waives, 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.
17. 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.
18. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) among the Fund, the
Advisers and the Underwriters, or any of them, with respect to the subject
matter thereof.
19. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
20. No Fiduciary Duty. Each of the Fund and Advisers hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm's-length commercial transaction between the Fund and
Advisers, on the one hand, and the Underwriters and any affiliate, through which
they may be acting, on the other, (b) the Underwriters are acting as principal
and not as an agent or fiduciary of the Fund or 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 Advisers agrees that it is
solely responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Fund or Advisers on related or other matters). Each of the Fund and
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 Advisers, in connection with such transaction or the
process leading thereto.
37
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.
"NYSE" shall mean the New York Stock Exchange.
"Organizational Documents" shall mean (a) in the case of a
corporation, its charter and by-laws; (b) in the case of a limited or
general partnership, its partnership certificate, certificate of
formation or similar organizational document and its partnership
agreement; (c) in the case of a trust, its agreement and declaration of
trust, certificate of trust, certificate of formation or similar
organizational document and its trust agreement, bylaws or other
similar document; and (d) in the case of any other entity, the
38
organizational and governing documents of such entity, in each case as
may be amended from time to time.
"Preliminary Prospectus" shall mean the preliminary prospectus
(including the statement of additional information incorporated by
reference therein) dated [ ], 2007 and any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus (including the
statement of additional information incorporated by reference therein)
relating to the Securities that is first filed pursuant to Rule 497
after the Execution Time.
"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 Securities
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 Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act
Rules and Regulations and the 1940 Act Rules and Regulations.
39
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN TAX-ADVANTAGED DIVIDEND GROWTH FUND
By:
---------------------------------------
Name:
Title:
NUVEEN ASSET MANAGEMENT
By:
---------------------------------------
Name:
Title:
SANTA XXXXXXX ASSET MANAGEMENT, LLC
By:
---------------------------------------
Name:
Title:
NWQ INVESTMENT MANAGEMENT COMPANY, LLC
By:
---------------------------------------
Name:
Title:
40
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
X.X. Xxxxxxx & Sons, Inc.
Nuveen Investments, LLC
By: Citigroup Global Markets Inc.
By:
---------------------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
UNDERWRITERS NUMBER OF SHARES OF SERIES T
------------ ----------------------------
Citigroup Global Markets Inc.
X.X. Xxxxxxx & Sons, Inc.
Nuveen Investments, LLC
UNDERWRITERS NUMBER OF SHARES OF SERIES T
------------ ----------------------------
TOTAL
