THE GABELLI UTILITY TRUST
2,000,000 Shares [ ]% Series A Cumulative Preferred Stock,
Liquidation Preference $25 Per Share
5,000 Shares Series B Auction Market Preferred Stock
Liquidation Preference $25,000 Per Share
UNDERWRITING AGREEMENT
July [ ], 2003
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
GABELLI & COMPANY, INC.
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York 10080
Dear Ladies and Gentleman:
The Gabelli Utility Trust, a Delaware statutory trust (the
"Fund"), proposes, upon the terms and conditions set forth herein, to issue
and sell an aggregate of 2,000,000 shares (the "Series A Shares") of its [ ]%
Series A Cumulative Preferred Stock, liquidation preference $25 per share,
$0.001 par value per share (the "Series A Preferred") and an aggregate of
2,000 shares (the "Series B Shares" and together with the Series A Shares, the
"Shares") of its Series B Auction Market Preferred Stock, liquidation
preference $25,000 per share, $0.001 par value per share (the "Series B
AMPS"), to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Shares will be authorized by, and subject to the terms
and conditions of, the Statement of Preferences of each of the Series A Shares
and Series B Shares to be adopted in connection with the issuance of the
Shares (collectively, the "Statement of Preferences").
The Fund and its investment adviser, Gabelli Funds, LLC, a
New York limited liability company (the "Adviser"), wish to confirm as follows
their agreement with you in connection with the several purchases of the
Shares by the Underwriters.
The Fund has entered into an investment advisory agreement
with the Adviser, a custodian agreement with State Street Bank and Trust
Company, a registrar, transfer agency and dividend reinvestment plan with
Equiserve Trust Company, N.A., and an auction agency agreement with The Bank
of New York. Such agreements are hereinafter referred to as the "Investment
Advisory Agreement", the "Custodian Agreement", the "Transfer Agency
Agreement" and the "Auction Agency Agreement", respectively. Collectively, the
Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency
Agreement and the Auction Agency Agreement are hereinafter referred to as the
"Fund Agreements". This Underwriting Agreement is hereinafter referred to as
the "Agreement".
1. Registration Statement and Prospectus. The Fund has
prepared in conformity with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated under the 1933 Act (the "1933 Act
Rules and Regulations") and the 1940 Act (the "1940 Act Rules and Regulations"
and, together with the 1933 Act Rules and Regulations, the "Rules and
Regulations") a registration statement on Form N-2 (File Nos. 333-105500 and
811-09243) under the 1933 Act and the 1940 Act (the "registration statement"),
including a prospectus relating to the Shares, and has filed the registration
statement and prospectus in accordance with the 1933 Act and the 1940 Act. The
Fund also has filed a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A (the "1940 Act
Notification"). The term "Registration Statement" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective under the 1933 Act or,
if the registration statement became effective under the 1933 Act prior to the
execution of this Agreement, as amended or supplemented at the time it became
effective, prior to the execution of this Agreement. If it is contemplated, at
the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed under the 1933 Act and must be declared
effective before the offering of the Shares may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If the Fund has filed
an abbreviated registration statement to register an additional amount of
Shares pursuant to Rule 462(b) under the 1933 Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall include such Rule 462 Registration Statement. The term "Prospectus" as
used in this Agreement means the prospectus and statement of additional
information in the forms included in the Registration Statement or, if the
prospectus and statement of additional information included in the
Registration Statement omits information in reliance on Rule 430A under the
1933 Act Rules and Regulations and such information is included in a
prospectus and statement of additional information filed with the Commission
pursuant to Rule 497(h) under the 1933 Act Rules and Regulations, the term
"Prospectus" as used in this Agreement means the prospectus and statement of
additional information in the form included in the Registration Statement as
supplemented by the addition of the information contained in the prospectus
filed with the Commission pursuant to Rule 497(h). The term "Prepricing
Prospectus" as used in this Agreement means the prospectus and statement of
additional information subject to completion in the form included in the
registration statement at the time of filing of Amendment No. [ ] to the
registration statement with the Commission on [ ], 2003 and as such prospectus
and statement of additional information shall have been amended from time to
time prior to the date of the Prospectus, together with any other prospectus
and statement of additional information relating to the Fund other than the
Prospectus, approved in writing by or directly or indirectly prepared by the
Fund or the Adviser; it being understood that the definition of Prepricing
Prospectus above shall not include any Prepricing Prospectus prepared by any
Underwriter unless approved in writing by the Fund or Adviser. The terms
"Registration Statement", "Prospectus" and "Prepricing Prospectus" shall also
include any financial statements incorporated by reference therein.
The Fund has furnished you with copies of such Registration
Statement, each amendment to such Registration Statement filed with the
Commission and each Prepricing Prospectus.
2. Agreements to Sell and Purchase. The Fund hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Fund and the Adviser herein contained and subject to all the
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase price of $[ ] per Series
A Share and a purchase price of $[ ] per Series B Share, the number of Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
3. Terms of Public Offering. The Fund and the Adviser have
been advised by you that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of and payment for the Shares shall be made at the office of
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center,
New York, New York 10080, at 10:00 A.M., New York City time, on [ ], 2003 (the
"Closing Date"). The place of closing for the Shares and the Closing Date may
be varied by agreement between you and the Fund.
Certificates for the Shares shall be registered in such
names and in such denominations as you shall request prior to 9:30 A.M., New
York City time, on the second business day preceding the Closing Date. Such
certificates shall be made available to you in New York City for inspection
and packaging not later than 9:30 A.M., New York City time, on the business
day next preceding the Closing Date. The certificates evidencing the Shares
shall be delivered to you on the Closing Date against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as
follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the 1933 Act before the
offering of the Shares may commence, the Fund will endeavor to cause the
Registration Statement or such post-effective amendment to become effective
under the 1933 Act as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing when the Registration
Statement or such post-effective amendment has become effective.
(b) The Fund will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus (or any amendment or supplement to any
of the foregoing) or for additional information, (ii) of the issuance by the
Commission, the National Association of Securities Dealers, Inc. (the "NASD"),
any state securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory, self-regulatory
or administrative agency or any official of any order suspending the
effectiveness of the Registration Statement, prohibiting or suspending the use
of the Prospectus, any Prepricing Prospectus or any sales material (as
hereinafter defined), of any notice pursuant to Section 8(e) of the 1940 Act,
of the suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or contemplated initiation of any proceeding
for any such purposes, (iii) of receipt by the Fund, the Adviser, any
affiliate of the Fund or the Adviser or any representative or attorney of the
Fund or the Adviser of any other material communication from the Commission,
the NASD, any state securities commission, any national securities exchange,
any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating to the Fund
(if such communication relating to the Fund is received by such person within
three years after the date of this Agreement), the Registration Statement, the
1940 Act Notification, the Prospectus, any Prepricing Prospectus, any sales
material (as hereinafter defined) (or any amendment or supplement to any of
the foregoing), this Agreement or any of the Fund Agreements and (iv) within
the period of time referred to in paragraph (f) below, of any material adverse
change in the condition (financial or other), business, prospects, properties,
net assets or results of operations of the Fund or the Adviser or of the
happening of any event which makes any statement of a material fact made in
the Registration Statement, the Prospectus, any Prepricing Prospectus or any
sales material (as hereinafter defined) (or any amendment or supplement to any
of the foregoing) untrue or which requires the making of any additions to or
changes in the Registration Statement, the Prospectus, any Prepricing
Prospectus or any sales materials (as herein defined) (or any amendment or
supplement to any of the foregoing) in order to state a material fact required
by the 1933 Act, the 1940 Act or the Rules and Regulations to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or of the necessity
to amend or supplement the Registration Statement, the Prospectus, any
Prepricing Prospectus or any sales material (as herein defined) (or any
amendment or supplement to any of the foregoing) to comply with the 1933 Act,
the 1940 Act, the Rules and Regulations or any other law or order of any court
or regulatory body. If at any time the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator, any
court or any other governmental, regulatory, self-regulatory or administrative
agency or any official shall issue any order suspending the effectiveness of
the Registration Statement, prohibiting or suspending the use of the
Prospectus or any sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) or suspending the qualification of the
Shares for offering or sale in any jurisdiction, the Fund will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Fund will furnish to you, without charge, three
signed copies of the registration statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto and will also furnish to you,
without charge, such number of additional copies of the registration statement
and of each amendment thereto, but without exhibits, as you may request.
(d) The Fund will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus,
any Prepricing Prospectus or any sales material (as hereinafter defined) of
which you shall not previously have been advised or to which you shall object
after being so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required by the 1933 Act to be delivered in
connection with sales by any Underwriter or dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), without delivering a copy of such information,
documents or reports to you prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement,
the Fund has delivered to you, without charge, in such quantities as you have
requested, copies of the form of the Prepricing Prospectus. The Fund consents
to the use, in accordance with the provisions of the 1933 Act and with the
state securities or blue sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Underwriters a prospectus is required by the
1933 Act to be delivered in connection with sales by any Underwriter or
dealer, the Fund will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any
amendments or supplements thereto) as you may request. The Fund consents to
the use of the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the 1933 Act and with the state securities
or blue sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Fund or in the opinion
of counsel for the Underwriters is required to be set forth in the
Registration Statement or the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and
Regulations or any other federal law, rule or regulation, or any state
securities or blue sky disclosure laws, rules or regulations, the Fund will
forthwith prepare and, subject to the provisions of paragraph (d) above,
promptly file with the Commission an appropriate supplement or amendment
thereto, and will expeditiously furnish to the Underwriters and dealers,
without charge, a reasonable number of copies thereof. In the event that the
Fund and you agree that the Registration Statement or the Prospectus is to be
amended or supplemented, the Fund, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
(g) The Fund and the Adviser will cooperate with you and
with counsel for the Underwriters in connection with the registration or
qualification, if necessary, of the Shares for offering and sale by the
several Underwriters and by dealers under the securities or blue sky laws of
such jurisdictions as you may designate and will file such consents to service
of process or other documents, if any, necessary or appropriate in order to
effect such registration or qualification.
(h) The Fund will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period ending not later than 15 months after the effective date
of the Registration Statement, as soon as practicable after the end of such
period, which earnings statement shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations.
(i) During the period of five years hereafter, the Fund will
furnish to you (i) as soon as available, a copy of each report of the Fund
mailed to stockholders or filed with the Commission or furnished to the New
York Stock Exchange (the "NYSE") other than reports on Form N-SAR, and (ii)
from time to time such other information concerning the Fund as you may
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 11 hereof or by notice given by you
terminating this Agreement pursuant to Section 11 or Section 12 hereof) or if
this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Fund or the Adviser to comply with the terms or
fulfill any of the conditions of this Agreement required to be complied with
or fulfilled by them, the Fund or, in the case of a failure or refusal by the
Fund, the Adviser, agrees to reimburse you for all out-of-pocket expenses
(including fees and expenses of counsel for the Underwriters) incurred by you
in connection herewith.
(k) The Fund will apply the net proceeds from the sale of
the Shares in accordance with the description set forth in the Prospectus and
in such a manner as to comply with the investment objective, policies and
restrictions of the Fund as described in the Prospectus.
(l) The Fund will timely file the requisite copies of the
Prospectus with the Commission pursuant to Rule 497(c) or Rule 497(h) of the
1933 Act Rules and Regulations, whichever is applicable or, if applicable,
will timely file the certification permitted by Rule 497(j) of the 1933 Act
Rules and Regulations and will advise you of the time and manner of such
filing.
(m) Except as provided in this Agreement and except to the
extent any hedging activities disclosed in the Prospectus may be considered
senior securities, the Fund will not sell, contract to sell, or otherwise
dispose of any senior securities of the Fund, or grant any options or warrants
to purchase senior securities of the Fund, for a period of 180 days after the
date of the Prospectus, without the prior written consent of Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, neither the Fund nor the Adviser has taken, nor
will it take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any securities issued by the Fund to facilitate the sale or
resale of the Shares; it being understood that the Underwriters include
certain affiliates of the Adviser and that stabilization or other activity by
you on behalf of the Underwriters shall not be deemed to be violative of this
representation.
(o) The Fund will use its best efforts to cause the Series A
Preferred, prior to the Closing Date, to be assigned a rating of Aaa by
Xxxxx'x Investors Service, Inc. ("Moody's") and the Series B AMPS, prior to
the Closing Date, to be assigned a rating of Aaa by Moody's and a rating of
AAA by Standard & Poor's Ratings Services ("S&P", and together with Moody's,
the "Rating Agencies").
(p) The Fund will use its best efforts to have the Series A
Shares listed, subject to notice of issuance, on the NYSE on or before [ ],
2003.
(q) The Fund's registration statement on Form 8-A, under the
1934 Act, has become effective.
(r) The Fund and the Adviser will use their best efforts to
perform all of the agreements required of them and discharge all conditions to
closing as set forth in this Agreement.
(s) The Fund will furnish to you, on the date on which
delivery is made to the Rating Agencies, the Accountant's Confirmation (as
defined in the Statement of Preferences) corresponding to the Basic
Maintenance Report (as defined in the Statement of Preferences) for the first
Valuation Date (as defined in the Statement of Preferences) following the
Closing Date.
6. Representations and Warranties of the Fund and the
Adviser. The Fund and the Adviser, jointly and severally, represent and
warrant to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 497 of the 1933 Act Rules and
Regulations, complied when so filed in all material respects with the
provisions of the 1933 Act, the 1940 Act and the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Registration Statement in the form in which it
became or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the Prospectus and
any amendment or supplement thereto when filed with the Commission under Rule
497 of the 1933 Act Rules and Regulations and the 1940 Act Notification when
originally filed with the Commission and any amendment or supplement thereto
when filed with the Commission, complied or will comply in all material
respects with the provisions of the 1933 Act, the 1940 Act and the Rules and
Regulations and did not or will not at any such times contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that this representation and warranty does not apply to statements in
or omissions from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Fund in writing by or
on behalf of any Underwriter through you expressly for use therein.
(c) All the outstanding shares of capital stock of the Fund
have been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Shares have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and free of any preemptive or similar rights and will
conform to the description thereof in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them). The capital
stock of the Fund conforms to the description thereof in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them).
(d) The Fund is a statutory trust duly organized and validly
existing in good standing under the laws of the State of Delaware, with full
trust power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), and is duly
registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, prospects, properties, net
assets or results of operations of the Fund. The Fund has no subsidiaries.
(e) There are no legal or governmental proceedings pending
or threatened, against the Fund, or to which the Fund or any of its properties
is subject, that are required to be described in the Registration Statement or
the Prospectus (and any amendment or supplement to either of them) but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus (and any amendment or supplement to
either of them) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the 1933 Act, the 1940 Act or
the Rules and Regulations.
(f) The Fund is not in violation of its Agreement and
Declaration of Trust or by-laws, or other organizational documents, or of any
law, ordinance, administrative or governmental rule or regulation applicable
to the Fund or of any decree of the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court or
governmental agency, body or official having jurisdiction over the Fund, or in
default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any contract required to be included as an
exhibit to the Registration Statement (each, a "Material Fund Agreement").
(g) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the transactions
contemplated hereby or thereby (A) requires any consent, approval,
authorization or other order of or registration or filing with, the
Commission, the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body, administrative agency or
other governmental body, agency or official (except such as may have been
obtained prior to the date hereof and such as may be required for compliance
with the state securities or blue sky laws of various jurisdictions which have
been or will be effected in accordance with this Agreement) or conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, the Agreement and Declaration of Trust, including the Statement of
Preferences, or by-laws, or other organizational documents, of the Fund or (B)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to
which the Fund is a party or by which it or any of its properties may be
bound, or violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties, or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Fund pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of its property or assets is subject. The Fund is not
subject to any order of any court or of any arbitrator, governmental authority
or administrative agency.
(h) The accountants, PricewaterhouseCoopers LLP, who have
audited and certified or shall audit and certify the financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them) are independent
public accountants as required by the 1933 Act, the 1940 Act and the Rules and
Regulations.
(i) The financial statements, together with related
schedules and notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), present fairly the financial position, results of operations and
changes in financial position of the Fund on the basis stated or incorporated
by reference in the Registration Statement and the Prospectus at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial and
statistical information and data included in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them) are
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Fund.
(j) The execution and delivery of, and the performance by
the Fund of its obligations under, this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund, and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against the
Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder and thereunder may be limited by federal or state
securities laws.
(k) Except as disclosed in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (and any amendment or supplement to
either of them), the Fund has not incurred any liability or obligation, direct
or contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Fund, and there has not been any change in
the capital stock, or material increase in the short-term debt or long-term
debt, of the Fund, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective
material adverse change, in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund,
whether or not arising in the ordinary course of business, it being understood
that a change of up to 15% of the aggregate market value of the Fund's assets
shall not cause this representation to be untrue.
(l) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the 1933 Act, the 1940 Act or the Rules and Regulations.
(m) The Fund has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus (and any amendment or supplement thereto), subject
to such qualifications as may be set forth in the Prospectus; the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the Fund under any such permit, subject
in each case to such qualification as may be set forth in the Prospectus (and
any amendment or supplement thereto); and, except as described in the
Prospectus (and any amendment or supplement thereto), none of such permits
contains any restriction that is materially burdensome to the Fund.
(n) The Fund maintains and will maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization and with the investment policies and restrictions of
the Fund and with 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, and to maintain accountability for
assets and to maintain 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.
(o) To the Fund's knowledge, except as disclosed in the
Prospectus, neither the Fund nor any employee or agent of the Fund has made
any payment of funds of the Fund or received or retained any funds, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(p) The Fund has filed all tax returns required to be filed,
which returns are complete and correct, and the Fund is not in material
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto.
(q) No holder of any security of the Fund has any right to
require registration of any shares of capital stock or any other security of
the Fund because of the filing of the Registration Statement or consummation
of the transactions contemplated by this Agreement.
(r) The Fund, subject to the Registration Statement having
been declared effective and the filing of the Prospectus under Rule 497 under
the Rules and Regulations, has taken all required action under the 1933 Act,
the 1940 Act and the Rules and Regulations to make the public offering and
consummate the sale of the Shares as contemplated by this Agreement.
(s) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names which
it does not own, possess or license.
(t) The Fund is duly registered under the 1940 Act as a
closed-end non-diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission and, at the time of
filing thereof and any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and the Rules
and Regulations. The Fund is, and at all times through the completion of the
transactions contemplated hereby, will be, in compliance in all material
respects with the terms and conditions of the 1933 Act and the 1940 Act. No
person is serving or acting as an officer, trustee or investment adviser of
the Fund except in accordance with the provisions of the 1940 Act and the 1940
Act Rules and Regulations and the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and the rules and regulations of the Commission
promulgated under the Advisers Act (the "Advisers Act Rules and Regulations").
(u) Except as stated in this Agreement and in the Prospectus
(and any amendment or supplement thereto), the Fund has not taken, nor will it
take, directly or indirectly, any action designed to or which might reasonably
be expected to cause or result in stabilization or manipulation of the price
of any securities issued by the Fund to facilitate the sale or resale of the
Shares, and the Fund is not aware of any such action taken or to be taken by
any affiliates of the Fund.
(v) The Fund has filed in a timely manner each document or
report required to be filed by it pursuant to the 1934 Act and the rules and
regulations of Commission promulgated thereunder (the "1934 Act Rules and
Regulations"); each such document or report at the time it was filed conformed
to the requirements of the 1934 Act and the 1934 Act Rules and Regulations;
and none of such documents or reports contained an untrue statement of any
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(w) 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 Adviser for use in connection with
the offering and sale of the Shares (collectively, "sales material") complied
and comply in all material respects with the applicable requirements of the
1933 Act, the 1940 Act, the Rules and Regulations and the rules and
interpretations of the NASD and no such sales material contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(x) Each of the Fund Agreements and the Fund's and the
Adviser's obligations under this Agreement and each of the Fund Agreements
comply in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act the Advisers Act
Rules and Regulations.
(y) At all times since its inception, as required by
Subchapter M of the Code, the Fund has complied with the requirements to
qualify as a regulated investment company under the Code.
(z) To the best knowledge of such counsel, no person is
serving as an officer, trustee or investment adviser of the Fund except in
accordance with the 1940 Act and the Rules and Regulations and the Advisers
Act and the Advisers Act Rules and Regulations. Except as disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement to
either of them), 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.
(aa) The Fund has no liability for borrowed money, including
under any reverse repurchase agreement.
7. Representations and Warranties of the Adviser. The
Adviser represents and warrants to each Underwriter as follows:
(a) The Adviser is a limited liability company duly
organized and validly existing in good standing under the laws of the State of
New York, with full limited liability company power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any amendment or supplement
to either of them), and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or to
qualify does not have a material adverse effect on the condition (financial or
other), business, prospects, properties, net assets or results of operations
of the Adviser and its subsidiaries, taken as a whole, or on the ability of
the Adviser to perform its obligations under this Agreement and the Investment
Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940
Act Rules and Regulations from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus (or any amendment or supplement
thereto). There does not exist any proceeding or any facts or circumstances
the existence of which could lead to any proceeding which might adversely
affect the registration of the Adviser with the Commission.
(c) There are no legal or governmental proceedings pending
or, to the knowledge of the Adviser, threatened against the Adviser, or to
which the Adviser or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as required or that may
reasonably be expected to involve a prospective material adverse change, in
the condition (financial or other), business, prospects, properties, net
assets or results of operations of the Adviser and its subsidiaries, taken as
a whole, or on the ability of the Adviser to perform its obligations under
this Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this
Agreement or the Investment Advisory Agreement by the Adviser, nor the
consummation by the Adviser of the transactions contemplated hereby or thereby
(A) requires the Adviser to obtain any consent, approval, authorization or
other order of or registration or filing with, the Commission, the NASD, any
state securities commission, any national securities exchange, any arbitrator,
any court, regulatory body, administrative agency or other governmental body,
agency or official or conflicts or will conflict with or constitutes or will
constitute a breach of or a default under the certificate of incorporation or
by-laws, or other organizational documents of the Adviser or (B) conflicts or
will conflict with or constitutes or will constitute a breach of or a default
under, any agreement, indenture, lease or other instrument to which the
Adviser is a party or by which it or any of its properties may be bound, or
violates or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Adviser or any of its properties
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Adviser pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Adviser is subject. The
Adviser is not subject to any order of any court or of any arbitrator,
governmental authority or administrative agency except for (a) an Order of the
Securities and Exchange Commission, dated August 17, 1988 and (b) an Order of
the Federal Communications Commission, dated August 21, 1992.
(e) The execution and delivery of, and the performance by
the Adviser of its obligations under, this Agreement and the Investment
Advisory Agreement have been duly and validly authorized by the Adviser, and
this Agreement and the Investment Advisory Agreement have been duly executed
and delivered by the Adviser and each constitutes the valid and legally
binding agreement of the Adviser, enforceable against the Adviser in
accordance with its terms except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws.
(f) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated
in the Prospectus (or any amendment or supplement thereto) and under this
Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
complied and comply in all material respects with the provisions the 1933 Act,
the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(h) Except as disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement to
either of them), the Adviser has not incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Adviser and its subsidiaries,
taken as a whole, and that is required to be disclosed in the Registration
Statement or in the Prospectus and there has not been any material adverse
change, or any development involving or which may reasonably be expected to
involve, a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net assets or results of operations
of the Adviser and its subsidiaries, taken as a whole, whether or not arising
in the ordinary course of business, or which, in each case, could have a
material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement and the Investment Advisory Agreement.
(i) The Adviser has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus (and any amendment or supplement thereto); the
Adviser has fulfilled and performed all its material obligations with respect
to such permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Adviser under any such permit;
and, except as described in the Prospectus (and any amendment or supplement
thereto), none of such permits contains any restriction that is materially
burdensome to the Adviser.
(j) Except as stated in this Agreement and in the Prospectus
(and in any amendment or supplement thereto), the Adviser has not taken, nor
will it take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of any securities issued by the Fund to facilitate the sale or
resale of the Shares, and the Adviser is not aware of any such action taken or
to be taken by any affiliates of the Adviser; it being understood that the
Underwriters include certain affiliates of the Adviser and that stabilization
or other activity by you shall not be deemed to be violative of this
representation.
(k) Xxxxx X. Xxxxxxx is the validly appointed Chief
Investment Officer of the Adviser and the portfolio manager of the Fund; Xx.
Xxxxxxx has not given notice nor made known an intention to give notice of
termination of his employment and the Adviser knows of no reason why Xx.
Xxxxxxx should be unable to serve as portfolio manager to the Fund.
(l) In the event that the Fund or the Adviser makes
available any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of a
proprietary Internet web site administered by such party or similar electronic
means, the Fund or the Adviser will install and maintain pre-qualification and
password- protection or similar procedures which are reasonably designed to
restrict access to such promotional materials by persons other than qualified
broker-dealers and representatives thereof.
(m) The Adviser is not in violation of its articles of
organization, by-laws or other organizational documents or in default under
any agreement, indenture or instrument, where such violation or default would
reasonably be expected to have a material adverse effect on the ability of the
Adviser to function as an investment adviser or perform its obligations under
the Investment Advisory Agreement.
8. Indemnification and Contribution.
(a) The Fund and the Adviser, jointly and severally, agree
to indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, any Prepricing Prospectus, any sales
material (or any amendment or supplement to any of the foregoing), or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Fund by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a
copy of the Prospectus shall not have been delivered or sent to such person
within the time required by the 1933 Act and the 1933 Act Rules and
Regulations, and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact contained in such Prepricing Prospectus
was corrected in the Prospectus, provided that the Fund has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement shall be
in addition to any liability that the Fund or the Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect
of which indemnity may be sought against the Fund or the Adviser, such
Underwriter or such controlling person shall promptly notify the Fund or the
Adviser, and the Fund or the Adviser shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Such
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the Fund or
the Adviser has agreed in writing to pay such fees and expenses, (ii) the Fund
and the Adviser have failed to assume the defense and employ counsel, or (iii)
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such controlling person
and the Fund or the Adviser and such Underwriter or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and the Fund or the Adviser by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Fund and the
Adviser shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the Fund and the Adviser shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, and that all such fees and expenses shall
be reimbursed as they are incurred. The Fund and the Adviser shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Fund and the Adviser agree to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Fund and the Adviser, their trustees, their
directors, any officers who sign the Registration Statement, and any person
who controls the Fund or the Adviser within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Fund and the Adviser to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Fund or the Adviser, any of their trustees, their
directors, any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to the Fund and the Adviser
by paragraph (b) above (except that if the Fund or the Adviser shall have
assumed the defense thereof such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Fund and the Adviser, their trustees, their
directors, any such officer, and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability that the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Fund and the Adviser on the one hand (treated jointly for this purpose
as one person) and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund and the Adviser on the one hand (treated jointly
for this purpose as one person) and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund and the
Adviser on the one hand (treated jointly for this purpose as one person) and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Fund bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault of the Fund and the Adviser on the one
hand (treated jointly for this purpose as one person) and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Fund and the Adviser on the one hand (treated jointly for this
purpose as one person) or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Fund, the Adviser and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8
were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any
such action, suit or proceeding. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective numbers
of Shares set forth opposite their names in Schedule I hereto and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section
8 and the representations and warranties of the Fund and the Adviser set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Fund, the Adviser, their trustees,
their directors or officers, or any person controlling the Fund or the
Adviser, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Fund, the Adviser, their
trustees, their directors or officers, or any person controlling the Fund or
the Adviser, shall be entitled to the benefits of the indemnity, contribution,
and reimbursement agreements contained in this Section 8.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Shares hereunder are subject
to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the Shares
may commence, the Registration Statement or such post-effective amendment
shall have become effective not later than 5:30 P.M., New York City time, on
the date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 497 and 430A under
the 1933 Act and the 1933 Act Rules and Regulations shall have been timely
made; no stop order suspending the effectiveness of the Registration Statement
or order pursuant to Section 8(e) of the 1940 Act shall have been issued and
no proceeding for those purposes shall have been instituted or, to the
knowledge of the Fund, the Adviser or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information (to
be included in the Registration Statement or the prospectus or otherwise)
shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change (other than a change of up to 15%
of the aggregate market value of the Fund's assets) or any development
involving a prospective change, in or affecting the condition (financial or
other), business, prospects, properties, net assets, or results of operations
of the Fund or the Adviser and its subsidiaries, taken as a whole, not
contemplated by the Prospectus, which in your opinion would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Fund or the Adviser or any trustee or officer or
director of the Fund or the Adviser which makes any statement made in the
Prospectus untrue or which, in the opinion of the Fund and its counsel or the
Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact required by the
1933 Act, the 1940 Act or the Rules and Regulations or any other law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such event
or development would, in your opinion materially adversely affect the market
for the Shares.
(c) The Fund shall have furnished to you a report showing
compliance with the asset coverage requirements of the 1940 Act and a Basic
Maintenance Report (as defined in the Statement of Preferences), each dated
the Closing Date and in form and substance satisfactory to you. Each such
report may use portfolio holdings and valuations as of the close of business
of any day not more than the six business days preceding the Closing Date;
provided, however, that the Fund represents in such report that its total net
assets as of the Closing Date have not declined by 5% or more from such
valuation date.
(d) You shall have received on the Closing Date, opinions of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Fund, dated the
Closing Date and addressed to you, to the effect that:
(i) The Fund is duly registered and qualified to
conduct its business and is in good standing in the State of New York
(which is the only jurisdiction identified by management of the Fund
to such counsel in which the Fund owns property, has operations or
conducts business);
(ii) The authorized and outstanding capital stock of
the Fund is as set forth under the caption "Capitalization" in the
Prospectus; and the authorized capital stock of the Fund (including
the Series A Preferred and the Series B AMPS) conforms in all
material respects as to legal matters to the description thereof
contained in the Prospectus under the captions "Description of
Capital Shares and Other Securities", "Description of the Series A
Preferred and Series B AMPS" and "The Auction of Series B AMPS";
(iii) Such counsel has been orally advised that the
Registration Statement has become effective under the 1933 Act and,
to the best knowledge of such counsel after reasonable inquiry, 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
no proceedings for that purpose are pending before or contemplated by
the Commission; and any required filing of the Prospectus pursuant to
Rule 497 has been made in accordance with Rule 497;
(iv) Each of this Agreement and the Fund Agreements
has been duly executed and delivered by the Fund and is a valid,
legal and binding agreement of the Fund, enforceable against the Fund
in accordance with its terms, except to the extent that (A)
enforcement hereof and thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, or (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (B) enforcement
of rights to indemnity and contribution hereunder and thereunder may
be limited by Federal or state securities laws or principles of
public policy;
(v) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement and
the Fund Agreements by the Fund, compliance by the Fund with the
provisions hereof or thereof nor consummation by the Fund of the
transactions contemplated hereby or thereby conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under any Material Fund Agreement, or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Fund under any Material Fund Agreement, nor
will any such action result in any violation of (a) any provision of
the New York Business Corporation Law and those laws, rules and
regulations of the State of New York and the United States of America
that, in the experience of such counsel, are normally applicable to
entities such as the Fund and transactions of the type contemplated
by this Agreement, but without having made any special investigation
concerning any other laws, rules or regulations (collectively,
"Applicable Fund Laws"); provided, that the term "Applicable Fund
Laws" does not include (1) the rules and regulations of the NASD, (2)
any federal or state securities or blue sky laws, (3) any antifraud
laws or (4) any law, rule or regulation that may have become
applicable to the Fund as a result of the Underwriters' involvement
with the transactions contemplated hereby or because of any facts
specifically pertaining to the Underwriters, or (b) any judgment,
order or decree of any New York or federal executive, legislative,
judicial, administrative or regulatory body under Applicable Fund
Laws and the NYSE (each, a "Governmental Fund Authority") identified
in an officer's certificate;
(vi) No consent, approval, license, authorization,
order or validation of, or filing, recording or registration with,
any Governmental Fund Authority pursuant to Applicable Fund Laws
(each, a "Governmental Fund Approval") is required for the valid
issuance and sale of the Shares to the Underwriters or the execution,
delivery and performance by the Fund of this Agreement and the Fund
Agreements or the consummation of the transactions contemplated
hereby and thereby except such Governmental Fund Approvals as have
been obtained;
(vii) The 1940 Act Notification, the Registration
Statement, the Prospectus and the Fund's Registration Statement on
Form 8-A under the 1934 Act and any supplements or amendments thereto
(except for the financial statements and the notes thereto and the
schedules and other financial and statistical data included therein,
as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the 1933 Act,
the 1940 Act, the Rules and Regulations, the 1934 Act and the rules
and regulations promulgated thereunder;
(viii) To the actual knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in the
Registration Statement or Prospectus (or any supplement thereto),
there are (A) no legal or governmental proceedings in the State of
New York or, to the actual knowledge of such counsel, any other
state, pending or threatened against the Fund, or to which the Fund
or any of its properties is subject, which are required to be
described in the Registration Statement or Prospectus (or any
amendment or supplement to either of them) that are not described as
required and (B) no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement, that are not described or filed as required,
as the case may be;
(ix) The statements in the Registration Statement,
Prospectus and statement of additional information under the caption
"Taxation", insofar as they refer to statements of law or legal
conclusions, are accurate and present fairly the information required
to be shown;
(x) Each of the Fund Agreements and the Fund's and
the Adviser's obligations under each of this Agreement and the Fund
Agreements comply as to form in all material respects with all
applicable provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(xi) The Fund is duly registered with the Commission
under the 1940 Act as a closed-end non-diversified management
investment company; and the provisions of the Fund's Agreement and
Declaration of Trust, including the Statement of Preferences, and
by-laws, and the investment policies and restrictions described in
the Registration Statement and the Prospectus under the captions "The
Fund", "Investment Objective and Policies", "Risk Factors and Special
Considerations" and "Investment Restrictions" (in the statement of
additional information) comply in all material respects with the
requirements of the 1940 Act, and all action has been taken by the
Fund as is required of the Fund by the 1933 Act and the 1940 Act and
the Rules and Regulations in connection with the issuance and sale of
the Shares to make the public offering and consummate the sale of the
Shares as contemplated by this Agreement;
(xii) The Fund has all necessary governmental
authorizations, approvals, orders, licenses, certificates, franchises
and permits of and from all governmental regulatory officials and
bodies required under Applicable Fund Law (except where the failure
so to have any such authorizations, approvals, orders, licenses,
certificates, franchises or permits, individually or in the
aggregate, would not have a material adverse effect on the business,
properties, operations or financial condition of the Fund), to own
its properties and to conduct business, as described in the
Prospectus;
(xiii) To the actual knowledge of such counsel after
reasonable inquiry, except as described in the Prospectus, there is
no holder of any security of the Fund or any other person who has the
right, contractual or otherwise pursuant to any Material Fund
Agreement, to cause the Fund to sell or otherwise issue to them, or
to permit them to underwrite the sale of, the Shares or the right to
have any securities of the Fund included in the registration
statement or the right, as a result of the filing of the registration
statement, to require registration under the 1933 Act of any
securities of the Fund;
(xiv) If the Fund operates as described in the
Prospectus, the Fund will qualify as a regulated investment company
under the Code; and
(xv) Such counsel shall also state that they have
participated in conferences with officers and employees of the Fund,
representatives of the independent accountants for the Fund, the
Underwriters and counsel for the Underwriters at which the contents
of the Registration Statement and the Prospectus and related matters
were discussed and, although they are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus except to the limited extent otherwise covered by
paragraphs (ii), (ix), (x) and (xii), and have made no independent
check or verification thereof, on the basis of the foregoing, no
facts have come to their attention that would have led them to
believe that the Registration Statement or any amendment or
supplement thereto, at the time it became effective, contained an
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements contained therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date and as of
the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made,
not misleading, except that they express no belief with respect to
the financial statements, schedules and other financial information
and statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement.
(e) You shall have received on the Closing Date, an opinion
of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, Delaware counsel for the Fund,
dated the Closing Date and addressed to you, to the effect that:
(i) The Fund is a statutory trust duly formed,
validly existing and in good standing under the laws of the State of
Delaware with full trust power to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them);
(ii) The authorized capital stock of the Fund is as
set forth under the caption "Capitalization" in the Prospectus; and
the authorized capital stock of the Fund conforms in all material
respects as to legal matters to the description thereof contained in
the Prospectus under the caption "Description of Capital Shares and
Other Securities";
(iii) The Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid
and nonassessable. The issuance of the Shares will not be subject to
preemptive or other similar rights entitling any person to purchase
or acquire any of the Shares upon the issuance thereof by the Fund
which arise by operation of the laws of the State of Delaware or
under the Agreement and Declaration of Trust or by-laws of the Fund;
(iv) The Shares conform in all material respects to
the description thereof contained in the Prospectus under the caption
"Description of the Series A Preferred and Series B AMPS" and "The
Auction of Series B AMPS";
(v) The form of certificates for the Shares conforms
to any requirements of the applicable laws under the State of
Delaware;
(vi) The Fund has the requisite trust power and
authority to enter into and execute and deliver this Agreement and
the Auction Agency Agreement and to issue, sell and deliver the
Shares to the Underwriters as provided for herein;
(vii) Each of this Agreement and the Auction Agency
Agreement has been duly authorized by the Fund. Neither the offer,
sale or delivery of the Shares, the execution, delivery or
performance of this Agreement and the Auction Agency Agreement by the
Fund, compliance by the Fund with the provisions hereof or thereof
nor consummation by the Fund of the transactions contemplated hereby
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the Agreement and Declaration of
Trust, including the Statement of Preferences, or by-laws of the
Fund;
(viii) The Fund has full trust power and to the
knowledge of such counsel, all governmental authorizations,
approvals, orders, licenses, certificates, franchises and permits
necessary or required under the laws of the State of Delaware for the
Fund to own its properties and to conduct its business as it now is
being conducted as described in the Prospectus (except in cases where
the failure so to have any such authorizations, approvals, orders,
licenses, certificates, franchises or permits, individually or in the
aggregate, would not have a material adverse effect on the business,
properties, operations or financial conditions of the Fund); and
(ix) No consent, approval, authorization or other
order of, or registration or filing with, any securities commission,
court, regulatory body, administrative agency or other governmental
body, agency, or official of the State of Delaware is required on the
part of the Fund for the valid issuance and sale of the Shares to the
Underwriters as contemplated by this Agreement, the execution and
delivery by the Fund of this Agreement and the performance by the
Fund of its obligations hereunder or the consummation of the
transactions contemplated hereby by the Fund, except those as may be
required under the securities or blue sky laws of the State of
Delaware; it being understood that such counsel do not express any
opinion as to any such consent, approval, authorization or other
order of, or registration or filing, which may be required as a
result of the involvement of any other parties to this Agreement.
(f) You shall have received on the Closing Date an opinion
of Xxxxx X. XxXxx, general counsel for the Adviser, dated the Closing Date and
addressed to you, to the effect that:
(i) The Fund is not in violation of its Agreement
and Declaration of Trust, including the Statement of Preferences, or
by-laws and, to the actual knowledge of such counsel after reasonable
inquiry, is not in default in the performance of any material
obligation, agreement or condition in any bond, debenture, note or
other evidence of indebtedness, except as may be disclosed in the
Prospectus;
(ii) The Fund is not in violation of any Material
Fund Agreement; and
(iii) To the actual knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of (A) any provision
of the New York Business Corporation Law and those laws, rules and
regulations of the State of New York and the United States of America
that, in the experience of such counsel, are normally applicable to
entities such as the Fund and transactions of the type contemplated
by this Agreement, but without having made any special investigation
concerning any other laws, rules or regulations; provided, that such
laws, rules and regulations do not include (1) the rules and
regulations of the NASD, (2) any federal or state securities or blue
sky laws other than the 1933 Act, the 1934 Act and the 1940 Act and
the rules and regulations thereunder to the extent not excluded by
item (3) below, (3) any antifraud laws under the 1933 Act or the 1934
Act as they apply to the Prospectus and the Registration Statement or
(4) any law, rule or regulation that may have become applicable to
the Fund as a result of the Underwriters' involvement with the
transactions contemplated by this Agreement or because of any facts
specifically pertaining to the Underwriters or (B) any order,
judgment or decree of any New York or federal executive, legislative,
judicial, administrative or regulatory body under the laws, rules and
regulations referred to in clause (A) of this paragraph and the NYSE.
(g) You shall have received on the Closing Date an opinion
of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Adviser,
dated the Closing Date and addressed to you, to the effect that:
(i) The Adviser is a limited liability company duly
organized and validly existing in good standing under the laws of the
State of New York with full limited liability company power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them), it
being understood that the opinion with respect to good standing is
based solely upon such counsel's review of a certificate of the
Secretary of State and a telephonic confirmation;
(ii) The Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act and is not
prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the 1940 Act Rules and Regulations from
acting under the Investment Advisory Agreement for the Fund as
contemplated by the Prospectus (or any amendment or supplement
thereto).
(iii) The Adviser has limited liability company
power and authority to enter into this Agreement and the Investment
Advisory Agreement, and this Agreement and the Investment Advisory
Agreement have been duly authorized, executed and delivered by the
Adviser and each is a valid, legal and binding agreement of the
Adviser, enforceable against the Adviser in accordance with its terms
except to the extent that (A) enforcement hereof and thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, or (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and (B) enforcement of rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state
securities laws or principles of public policy;
(iv) Neither the execution, delivery or performance
of this Agreement or the Investment Advisory Agreement by the
Adviser, compliance by the Adviser with the provisions hereof or
thereof nor consummation by the Adviser of the transactions
contemplated hereby or thereby conflicts or will conflict with, or
constitutes or will constitute a breach of or default under, the
certificate of incorporation or by-laws, or other organizational
documents, of the Adviser or any contract or agreement to which the
Adviser is a party which has been identified to such counsel by the
Adviser as material or as one which could have an effect on the types
of transactions contemplated by this Agreement (each, an "Material
Adviser Agreement"), or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Adviser under any Material Adviser Agreement, nor will any such
action result in any violation of any provision of the New York
Business Corporation Law and those laws, rules and regulations of the
State of New York and the United States of America that, in the
experience of such counsel, are normally applicable to entities such
as the Adviser and transactions of the type contemplated by this
Agreement, but without having made any special investigation
concerning any other laws, rules or regulations (collectively,
"Applicable Adviser Laws"); provided, that the term "Applicable
Adviser Laws" does not include (1) the rules and regulations of the
NASD, (2) any federal or state securities or blue sky laws, (3) any
antifraud laws or (4) any law, rule or regulation that may have
become applicable to the Adviser as a result of the Underwriters'
involvement with the transactions contemplated hereby or because of
any facts specifically pertaining to the Underwriters;
(v) No consent, approval, license, authorization or
validation of, or filing, recording or registration with, any New
York or federal executive, legislative, judicial, administrative or
regulatory body under Applicable Adviser Laws (each, a "Governmental
Adviser Approval") is required on the part of the Adviser for the
execution, delivery and performance by it of this Agreement and the
Investment Advisory Agreement to which it is a party or the
consummation by it of the transactions contemplated hereby and
thereby except such Governmental Adviser Approvals as have been
obtained;
(vi) To the actual knowledge of such counsel after
reasonable inquiry, there are no legal or governmental proceedings
pending or threatened against the Adviser or to which the Adviser or
any of its properties is subject, which are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement to either of them) but are not described as required or
which could reasonably be expected to adversely affect the ability of
the Adviser to perform its obligations under this Agreement or the
Investment Advisory Agreement;
(vii) The obligations of the Adviser under this
Agreement and the Investment Advisory Agreement comply in all
material respects with all applicable provisions of the 1940 Act, the
1940 Act Rules and Regulations, the Advisers Act and the Advisers Act
Rules and Regulations;
(viii) The Adviser has full limited liability
company power and authority, and all necessary governmental
authorizations, approvals, orders, licenses, certificates, franchises
and permits of and from all governmental regulatory officials and
bodies required under Applicable Adviser Law (except where the
failure so to have any such authorizations, approvals, orders,
licenses, certificates, franchises or permits, individually or in the
aggregate, would not have a material adverse effect on the business,
properties, operations or financial condition of the Adviser and its
subsidiaries), to own its properties and to conduct its business,
including specifically its business of acting as investment adviser
to registered investment companies and as otherwise described in the
Prospectus, and to perform its obligations under the Investment
Advisory Agreement;
(ix) Such counsel shall also state that such counsel
has been advised by the Adviser that it is not registered or
qualified to conduct its business as a foreign corporation in any
jurisdiction and that it believes there is no such jurisdiction where
the nature of its properties or the conduct of its business requires
such registration or qualification and where the failure to register
or qualify would have a material adverse effect on the operations of
the Adviser or on the ability of the Adviser to perform its
obligations under this Agreement or the Investment Advisory
Agreement; and
(x) Such counsel shall also state that they have
participated in conferences with officers and employees of the
Adviser and the Fund, representatives of the independent accountants
for the Adviser and the Fund and the Underwriters and counsel for the
Underwriters at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although they
are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent
check or verification thereof, on the basis of the foregoing, no
facts have come to their attention that would have led them to
believe that the Registration Statement or any amendment or
supplement thereto, at the time it became effective, contained an
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements contained therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date and as of
the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made,
not misleading, except that they express no belief with respect to
the financial statements, schedules and other financial information
and statistical data included therein or excluded therefrom or the
exhibits to the Registration Statement.
(h) You shall have received on the Closing Date an opinion
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the
Closing Date and addressed to you, with respect to such matters as you may
reasonably request.
(i) You shall have received at the time of the execution of
this Agreement, a letter dated such date from PricewaterhouseCoopers LLP, in
form and substance satisfactory to you, containing statements and information
to the effect that:
(i) They are independent certified public
accountants with respect to the Fund within the meaning of the 1933
Act and 1940 Act, and the applicable rules and regulations thereunder
adopted by the Commission;
(ii) In their opinion, the financial statements of
the Fund audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and 1940 Act and the related
rules and regulations adopted by the Commission;
(iii) They will perform the procedures (but not an
audit in accordance with generally accepted auditing standards)
consisting of:
(A) Reading the minutes of meetings of the Board of
Trustees of the Fund as set forth in the minute books through a
specified date not more than three business days prior to the
date of delivery of such letter;
(B) Making inquiries of certain officials of the
Fund who have responsibility for financial and accounting
matters regarding changes in the capital stock, net assets or
long-term liabilities of the Fund as compared with the amounts
shown in the latest balance sheet included in the Registration
Statement or for the period from the date of the latest income
statement included in the Registration Statement to a specified
date not more than three business days prior to the delivery of
such letter.
(iv) The letter shall also state that the
information set forth under the captions "Financial Highlights",
"Capitalization", "Summary--Rating and Asset Coverage Requirements"
and "Description of the Series A Preferred and Series B AMPS--Asset
Maintenance Requirements" which is expressed in dollars (or
percentages derived from such dollar amounts) and has been obtained
from accounting records which are subject to controls over financial
reporting or which has been derived directly from such accounting
records by analysis or computation, is in agreement with such records
or computations made therefrom, and such other procedures as the
Underwriters may request and PricewaterhouseCoopers LLP are willing
to perform and report upon.
(j) On the Closing Date, you shall have received from
PricewaterhouseCoopers LLP a letter, dated as of the Closing Date, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (i) of this Section 9, except that the specified date referred
to shall be a date not more than three business days prior to Closing Date.
(k) (i) No order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the Prospectus
(or any amendment or supplement thereto) or any Prepricing Prospectus or any
sales material shall have been issued and no proceedings for such purpose or
for the purpose of commencing an enforcement action against the Fund, the
Adviser or, with respect to the transactions contemplated by the Prospectus
(or any amendment or supplement thereto) and this Agreement, any Underwriter,
may be pending before or, to the knowledge of the Fund, the Adviser or any
Underwriter or in the reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the Closing Date
and that any request for additional information on the part of the Commission
(to be included in the Registration Statement, the Prospectus or otherwise) be
complied with to your satisfaction; (ii) there shall not have been any change
in the capital stock of the Fund nor any material increase in the short-term
or long-term debt of the Fund (other than in the ordinary course of business)
from that set forth or contemplated in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); (iii) there shall not
have been, subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto), any
material adverse change in the condition (financial or other), business,
prospects, properties, net assets or results of operations of the Fund or the
Adviser; (iv) the Fund shall not have any liabilities or obligations, direct
or contingent (whether or not in the ordinary course of business), that are
material to the Fund, other than those reflected in the Registration Statement
or the Prospectus (or any amendment or supplement to either of them) and other
than liabilities for payment for securities in accordance with the Fund's
investment objective and policies; and (v) all the representations and
warranties of the Fund and the Adviser contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of each of the Fund and the Adviser (or such
other officers as are acceptable to you), to the effect set forth in this
Section 9(k) and in Section 9(l) hereof.
(l) That neither the Fund nor the Adviser shall have failed
at or prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
(m) The Fund shall have delivered and you shall have
received evidence satisfactory to you that the Series A Shares are rated at
least Aaa by Xxxxx'x and the Series B Shares are rated at least Aaa by Xxxxx'x
and rated at least AAA by S&P as of the Closing Date, and there shall not have
been given any notice of any intended or potential downgrading, or of any
review for a potential downgrading, in the rating accorded to the Shares by
either Rating Agency.
(n) As of the Closing Date and assuming the receipt of the
net proceeds from the sale of the Shares, the asset coverage requirements of
the 1940 Act and the Basic Maintenance Amount (as defined in the Statement of
Preferences) will be met.
(o) The Fund and the Adviser shall have furnished or caused
to be furnished to you such further certificates and documents as you shall
have requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Fund or the Adviser and delivered to you or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Fund or the Adviser to
each Underwriter as to the statements made therein.
10. Expenses. The Fund agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the 1940 Act
Notification, the Prospectus and each amendment or supplement to any of them
(including, without limitation, the filing fees prescribed by the 1933 Act,
the 1940 Act and the Rules and Regulations); (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
Prepricing Prospectus, the Prospectus, any sales material and all amendments
or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Shares, including any stamp taxes in connection with the original issuance and
sale of the Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, any dealer agreements, the preliminary and supplemental blue sky
memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) the registration
of the Shares under the Exchange Act and the listing of the Series A Shares on
the New York Stock Exchange; (vi) the qualification of the Shares for offer
and sale under the state securities or blue sky laws of the several states
(including the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental blue sky memoranda and such
registration and qualification); (vii) fees paid to the Rating Agencies;
(viii) the transportation and other expenses incurred by or on behalf of Fund
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Fund's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Fund and of the transfer agent.
Except as provided in this Section 10, the Underwriters
agree to pay their own costs and expenses of the underwriting, including the
fees and expenses of their counsel.
11. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Fund, by notifying you, or by you, by notifying the Fund.
If any one or more of the Underwriters shall fail or refuse
to purchase the Shares which it or they are obligated to purchase hereunder on
the Closing Date, and the aggregate number of the Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is
not more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Shares set forth opposite its name in Schedule I hereto
bears to the aggregate number of such Shares set forth opposite the names of
all non-defaulting Underwriters, to purchase the Shares which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. If
any one or more of the Underwriters shall fail or refuse to purchase the
Shares which it or they are obligated to purchase on the Closing Date and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Fund for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Fund are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Fund. In any
such case which does not result in a termination of this Agreement either you
or the Fund shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement. The term "Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule I hereto who, with your approval and the approval
of the Fund, purchases Shares which a defaulting Underwriter is obligated, but
fails or refuses, to purchase.
Any notice under this Section 11 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be
subject to termination in your absolute discretion, without liability on the
part of any Underwriter to the Fund or the Adviser, by notice to the Fund or
the Adviser, if at any time prior to the Closing Date (i) trading in any
Fund's securities shall have been suspended by the Commission or the NYSE or
trading in securities generally on the NYSE, the American Stock Exchange or
the Nasdaq National Market shall have been suspended or limited or minimum
prices shall have been established on the NYSE, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
international or domestic calamity, crisis or change in political, financial
or economic conditions, the effect of which on financial markets is such as to
make it, in your judgment, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the
resale of the Shares by the Underwriters. Notice of such termination may be
given to the Fund by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
13. Information Furnished by the Underwriters. The
statements set forth in the last paragraph of the cover page, the
stabilization legend on the inside cover page and the statements in the first,
fourth, and tenth paragraphs under the caption "Underwriting" in any
Prepricing Prospectus and in the Prospectus, constitute the only information
furnished by or on behalf of the Underwriters through you as such information
is referred to in Sections 6(b) and 8 hereof.
14. Miscellaneous. Except as otherwise provided in Sections
5, 11 and 12 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Fund or the Adviser,
at the office of the Fund at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx X. Xxxxxx; or (ii) if to you, care of Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, New York, New York
10080, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit
of the several Underwriters, the Fund, the Adviser, their trustees, their
directors and officers, and the other controlling persons referred to in
Section 8 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or
by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from any Underwriter of any of the Shares in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall 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.
This Agreement may be signed in various counterparts that
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement among the Fund and the Adviser and the several Underwriters.
Very truly yours,
THE GABELLI UTILITY TRUST
By:_____________________________
Name:
Title:
GABELLI FUNDS, LLC
By:_____________________________
Name:
Title:
Name: above written on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
GABELLI & COMPANY, INC.
By XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _______________________________
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
THE GABELLI UTILITY TRUST
---------------------------------------------------------------------------------------------
Underwriter Number of Series A Number of Series B
Shares Shares
---------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
---------------------------------------------------------------------------------------------
Gabelli & Company, Inc.
---------------------------------------------------------------------------------------------
