EXHIBIT (h)
THE GABELLI GLOBAL GOLD, NATURAL RESOURCES & INCOME TRUST
_____ COMMON SHARES OF BENEFICIAL INTEREST
($ par value)
UNDERWRITING AGREEMENT
New York, New York
______, 2005
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxxx & Sons, Inc.
Gabelli & Company, Inc.
Advest, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company Incorporated
TD Waterhouse Investor Services, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Gabelli Global Gold, Natural Resources &
Income Trust, an unincorporated Delaware statutory trust (the "Fund"), Gabelli
Funds, LLC, a New York limited liability corporation (the "Adviser"), address
you as underwriters and as the representatives (the "Representatives") of each
of the several underwriters named on Schedule I hereto (the "Underwriters"). The
Fund proposes to sell to the Underwriters _____ shares (the "Underwritten
Securities") of its common shares of beneficial interest, par value $0.01 per
share (the "Common Shares"). The Fund also proposes to grant to the Underwriters
an option to purchase up to _____ additional Common Shares to cover
over-allotments (the "Option Securities"). The Underwritten Securities and the
Option Securities are hereinafter collectively referred to as the "Securities."
Unless otherwise stated, the term "you" as used herein means Citigroup Global
Markets Inc. individually on its own behalf and on behalf of the other
Representatives. Certain terms used herein are defined in Section 18 hereof.
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The Fund and the Adviser wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Securities by the
Underwriters.
The Fund has entered into an Investment Advisory Agreement
with the Adviser dated as of _____, 200_, a Custodian Contract with _____ dated
as of _____, 200_, and a Registrar, Transfer Agency and Service Agreement with
_____ dated as of _____, 200_, and such agreements are herein referred to as the
"Investment Advisory Agreement," the "Custodian Contract" and the "Registrar,
Transfer Agency and Service Agreement," respectively. The Adviser has entered
into an Additional Compensation Agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated dates as of March __, 2005 and a Structuring Fee Agreement
with Citigroup Global Markets Inc. dated as of March __, 2005, and such
agreements are herein referred to as the "Additional Compensation Agreement" and
"Structuring Fee Agreement." Collectively, the Investment Advisory Agreement,
the Custodian Contract and the Registrar, Transfer Agency and Service Agreement
are herein referred to as the "Fund Agreements." In addition, the Fund has
adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant
to which holders of Common Shares shall have their dividends automatically
reinvested in additional Common Shares of the Fund unless they elect to receive
such dividends in cash.
1. Representations and Warranties of the Fund and the Adviser.
The Fund and the Adviser, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-121998 and 811-21698) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
for registration under the Act and the 1940 Act of the offering and
sale of the Securities. The Fund may have filed one or more amendments
thereto, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
each of which has previously been furnished to you. The Fund will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final prospectus
(including the statement of additional information incorporated by
reference therein)) or (2) after the Effective Date of such
registration statement, a final prospectus (including the statement of
additional information incorporated by reference therein) in accordance
with Rules 430A and 497. In the case of clause (2), the Fund has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the 1940 Act and the Rules and Regulations to be included
in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such
final prospectus (including the statement of additional information
incorporated by reference therein), shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to
the Execution Time, will be included or made therein.
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(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 497 and on the Closing Date (as defined herein),
the Prospectus (and any supplements thereto) will, and the 1940 Act
Notification when originally filed with the Commission and any
amendment or supplement thereto when filed with the Commission did or
will, comply in all material respects with the applicable requirements
of the Act, the 1940 Act and the Rules and Regulations and the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 497, will not, and on the date of any filing pursuant
to Rule 497 and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Fund
makes no representations or warranties as to the information contained
in or omitted from the Registration Statement, or the Prospectus (or
any supplement thereto), in reliance upon and in conformity with
information furnished in writing to the Fund by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement
thereto). The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus.
(c) The Fund has been duly formed and is validly existing in
good standing as a statutory trust under the laws of the State of
Delaware, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure so to
register or qualify would not have a material adverse effect on the
condition (financial or other), assets or results of operations,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect") on the Fund. The Fund has no subsidiaries.
(d) The Fund's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Fund conforms to the
description thereof contained in the Registration Statement and the
Prospectus; all outstanding Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution,
on the American Stock Exchange (the "AMEX"); the certificates for the
Securities are in valid and sufficient form; the holders of outstanding
Common Shares are not entitled to preemptive or other rights to
subscribe for the Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Fund are outstanding.
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(e) The Fund's registration statement on Form 8-A under the
Exchange Act has become effective.
(f) The Fund, subject to the Registration Statement having
been declared effective and the filing of the Prospectus under Rule
497, has taken all required action under the Act, the 1940 Act and the
Rules and Regulations to make the public offering and consummate the
sale of the Securities as contemplated by this Agreement.
(g) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit thereto,
which are not described or filed as required by the Act, the 1940 Act
or the Rules and Regulations.
(h) 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, assuming due authorization, execution and delivery by the
other parties thereto, constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance with
their terms, except as enforcement of rights to indemnity and
contribution hereunder and thereunder may be limited by federal or
states securities laws or considerations of public policy and subject
to the qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, liquidation, receivership, conservatorship,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in a proceeding
in equity or at law) and fair dealing.
(i) The Fund is duly registered under the 1940 Act as a
closed-end, non-diversified management investment company and the 1940
Act Notification has been duly filed with the Commission. The Fund has
not received any notice from the Commission pursuant to Section 8(e) of
the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement.
(j) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act and the 1940
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Prospectus.
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(k) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the
Agreement and Declaration of Trust or By-laws of the Fund, (ii)
conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound or (iii) violates or will violate any 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 the property or assets of the Fund is subject.
(l) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(m) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Prospectus and
the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Fund
as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and the 1940 Act and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); and the other financial
and statistical information and data included in the Registration
Statement and the Prospectus are accurately derived from such financial
statements and the books and records of the Fund.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation
of any of the transactions herein contemplated or (ii) could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Fund, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(o) The Fund owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(p) The Fund is not (i) in violation of its Agreement and
Declaration of Trust or By-laws, (ii) in violation of any law,
ordinance, administrative or governmental rule or regulation applicable
to the Fund or of any decree of the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official having
jurisdiction over the Fund, or (iii) in breach or default in the
performance of the terms of any note agreement, loan agreement or other
evidence of indebtedness or any material agreement, indenture,
contract, lease, mortgage, deed of trust, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, except where such violation or default would not
have a Material Adverse Effect on the Fund.
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(q) PricewaterhouseCoopers LLP, who have certified, or will
certify, the audited March 10, 2005 financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus have represented to the Fund that they are an independent
registered public accounting firm within the meaning of the Act and the
Act Rules and Regulations.
(r) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or
other materials permitted by the Act, the 1940 Act or the Rules and
Regulations.
(s) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Fund or
sale by the Fund of the Securities.
(t) The Fund has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto)) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(u) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by the Fund or the Adviser
for use in connection with the offering and sale of the Securities
(collectively, "sales material") complied and comply in all material
respects with the applicable requirements of the Act, the 1940 Act, the
Rules and Regulations and the rules and interpretations of the NASD and
if required to be filed with the NASD under the NASD's conduct rules
were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, for filing. No sales material contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
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(v) The Fund's trustees and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund
has not been refused any insurance coverage sought or applied for; and
the Fund has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(w) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described in
the Prospectus except to the extent that the failure to so have should
not reasonably be expected to have a Material Adverse Effect on the
Fund; 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, except where the
revocation or termination of the Fund's rights under such permits would
not have a Material Adverse Effect on the Fund; and, except as
described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Fund.
(x) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization and with the investment objectives, policies
and restrictions of the Fund and the applicable requirements of the
1940 Act, the 1940 Act Rules and Regulations and the Internal Revenue
Code of 1986, as amended (the "Code"); (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate
net asset value, to maintain accountability for assets and to maintain
material compliance with the books and records requirements under the
1940 Act and the 1940 Act Rules and Regulations; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(y) Except as stated in this Agreement and the Prospectus, the
Fund has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
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(z) This Agreement and each of the Fund Agreements complies in
all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Advisers Act and the Advisers
Act Rules and Regulations.
(aa) Except as disclosed in the Prospectus, no trustee of the
Fund is an "interested person" (as defined in the 0000 Xxx) of the Fund
or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter listed in Schedule I hereto.
(bb) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with
the requirements of Subchapter M of the Code.
(cc) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or
licensee of any patents, patent licenses, trademarks, service marks or
trade names which it does not own, possess or license.
(dd) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global
Markets Holdings Inc. and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of Citigroup Global Markets
Holdings Inc.
(ee) There is and has been no failure on the part of the Fund
and any of the Fund's trustees or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated in connection therewith (the
"Xxxxxxxx-Xxxxx Act"), including Sections 302 and 906 related to
certifications.
Any certificate signed by any officer of the Fund and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Fund, as to matters covered therein, to each Underwriter.
2. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State
of New York, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to so register or to qualify would not have a
Material Adverse Effect on the ability of the Adviser to perform its
obligations under this Agreement, the Investment Advisory Agreement and
the Structuring Fee Agreement.
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(b) The Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Investment Advisory Agreement for
the Fund, the Additional Compensation Agreement or the Structuring Fee
Agreement as contemplated by the Prospectus.
(c) The Adviser has full power and authority to enter into
this Agreement, the Investment Advisory Agreement, the Additional
Compensation Agreement and the Structuring Fee Agreement, the execution
and delivery of, and the performance by the Adviser of its obligations
under, this Agreement, the Investment Advisory Agreement, the
Additional Compensation Agreement and the Structuring Fee Agreement
have been duly and validly authorized by the Adviser; and this
Agreement, the Investment Advisory Agreement, the Additional
Compensation Agreement and the Structuring Fee Agreement have been duly
executed and delivered by the Adviser and, assuming due authorization,
execution and delivery by the other parties thereto, constitute the
valid and legally binding agreements of the Adviser, enforceable
against the Adviser in accordance with their terms, except as
enforcement of rights to indemnity and contribution hereunder may be
limited by federal or states securities laws and subject to the
qualification that the enforceability of the Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
liquidation, receivership, conservatorship, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforcement is sought in a proceeding in equity or at law) and fair
dealing.
(d) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus and under this Agreement, the Investment
Advisory Agreement, the Additional Compensation Agreement and the
Structuring Fee Agreement.
(e) The description of the Adviser and its business, and the
statements attributable to the Adviser, in the Registration Statement
and the Prospectus complied and comply in all material respects with
the provisions of the Act, the 1940 Act, the Advisers Act, the Rules
and Regulations and the Advisers Act Rules and Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property is pending or, to the best knowledge of the
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of the Adviser to fulfill its
obligations hereunder or under the Investment Advisory Agreement or the
Structuring Fee Agreement or (ii) could reasonably be expected to have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Adviser, whether or
not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto); and there are no agreements, contracts,
indentures, leases or other instruments relating to the Adviser that
are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act, the 1940 Act or
the Rules and Regulations.
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(g) The Adviser has such licenses, permits and authorizations
of governmental or regulatory authorities ("Adviser permits") as are
necessary to own its property and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
so have would not have a Material Adverse Effect on the ability of the
Adviser to perform its obligation under this Agreement, the Investment
Advisory Agreement and the Structuring Fee Agreement; the Adviser has
fulfilled and performed all its material obligations with respect to
such Adviser 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 Adviser permit, except where the revocation,
termination or impairment of the Adviser's rights under such Adviser
permits would not have a Material Adverse Effect on the ability of the
Adviser to perform its obligation under this Agreement, the Investment
Advisory Agreement and the Structuring Fee Agreement.
(h) This Agreement, the Investment Advisory Agreement, the
Additional Compensation Agreement and the Structuring Fee 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.
(i) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Investment Advisory
Agreement, the Additional Compensation Agreement or the Structuring Fee
Agreement, except such as have been made or obtained under the Act and
the 1940 Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Prospectus.
(j) Neither the execution, delivery or performance of this
Agreement or the Investment Advisory Agreement, the Additional
Compensation Agreement and the Structuring Fee Agreement, nor the
consummation by the Fund or the Adviser of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes
or will constitute a breach of the Agreement and Declaration of Trust
or By-laws of the Adviser, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Adviser is
a party or by which it or any of its properties may be bound or (iii)
violates or will violate any 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 the
Adviser is a party or by which the Adviser may be bound or to which any
of the property or assets of the Adviser is subject, except in any case
under clauses (ii) or (iii) as would not have a Material Adverse Effect
on the ability of the Adviser to perform its obligations under this
Agreement, the Investment Advisory Agreement or the Structuring Fee
Agreement.
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(k) The Adviser has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund
to facilitate the sale or resale of the Securities, and the Adviser is
not aware of any such action taken or to be taken by any affiliates of
the Adviser.
(l) Xxxxx X. Xxxxxxx is the validly appointed Chief Investment
Officer of the Adviser; 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
Chief Investment Officer to the Fund.
(m) In the event that the Fund or the Adviser makes available
any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, the Adviser will install
and maintain pre-qualification and password-protection or similar
procedures which are reasonably designed to effectively prohibit access
to such promotional materials by persons other than qualified
broker-dealers and registered representatives thereof.
Any certificate signed by any officer of the Adviser and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Adviser, as to matters covered therein, to each Underwriter.
3. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Fund agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Fund, at a purchase price of $_____ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____ Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
12
4. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 3(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
[March 31], 2005 or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the Fund
or as provided in Section 10 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Fund will deliver
the Option Securities (at the expense of the Fund) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
If settlement for the Option Securities occurs after the Closing Date, the Fund
will deliver to the Representatives, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 7 hereof.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Fund has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 497, the Fund will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to Rule
497 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Fund
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 497
or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Fund of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Fund will use its
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
13
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act, the 1940 Act and the Rules and
Regulations, the Fund promptly will (1) notify the Representatives of
any such event, (2) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 6, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Fund will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Fund which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Fund will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
14
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Fund or any
affiliate of the Fund or any person in privity with the Fund, directly
or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other Common Shares or any securities convertible
into, or exercisable, or exchangeable for, Common Shares; or publicly
announce an intention to effect any such transaction for a period of
180 days following the Execution Time, provided, however, that the Fund
may issue and sell Common Shares pursuant to any dividend reinvestment
plan of the Fund in effect at the Execution Time.
(g) The Fund will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and will use its best efforts to
cause the Fund's directors and officers, in their capacities as such,
to comply with such laws, rules and regulations, including, without
limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Fund and the Adviser will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the
Securities.
(i) The Fund agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus and the 1940 Act Notification and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, any sales
material and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum,
dealer agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the AMEX; (vi) any
registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii)
any filings required to be made with the NASD (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Fund's accountants and the fees and expenses
of counsel (including local and special counsel) for the Fund; (x) all
other costs and expenses incident to the performance by the Fund of its
obligations hereunder; and (xi) (xi) an amount equal to $.005 per
Common Share, which amount will not exceed $ or 0.025% of the total
initial price to the public of the Common Shares sold pursuant to this
Agreement, payable no later than 45 days from the date of this
Agreement to the Underwriters in partial reimbursement of their
expenses in connection with the offering. To the extent that the
foregoing costs and expenses incidental to the performance of the
obligations of the Fund under this Agreement exceed $.04 per Share, the
Adviser will pay all such costs and expenses.
15
(j) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(k) The Fund will comply with the requirements of Subchapter M
of the Code to qualify as a regulated investment company under the
Code.
(l) The Fund and the Adviser will use their reasonable best
efforts to perform all of the agreements required of them by this
Agreement and discharge all conditions of theirs to closing as set
forth in this Agreement.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund and the Adviser contained
herein as of the Execution Time, the Closing Date pursuant to Section 4 hereof,
to the accuracy of the statements of the Fund made in any certificates pursuant
to the provisions hereof, to the performance by the Fund or the Adviser of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the total public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM New York City time on the Business Day following the day on
which the total public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date;
if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 497, the Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 497;
and no stop order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened, and any request of the Commission for
additional information (to be included in the Registration Statement or
Prospectus or otherwise) shall have been complied with in all material
respects.
16
(b) The Fund shall have requested and caused Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Fund, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) The Fund has been duly formed and is in good
standing as a statutory trust under the laws of the State of
Delaware, with full trust power and authority to conduct its
business as described in the Prospectus. The opinion set forth
in this paragraph 1 with respect to the Fund's formation,
existence and standing is based solely upon our review of a
certificate of the Secretary of State of the State of Delaware
[and a telephonic confirmation from the Secretary of State of
the State of Delaware].
(ii) The Fund has filed an Application for Authority
to do business in the State of New York (which is the only
jurisdiction identified by management of the Trust to us in
which the Fund conducts its business) on [ ], 2005. The Fund
has no subsidiaries.
(iii) The Fund is registered with the Commission
under the 1940 Act as a closed-end, non-diversified management
investment company; the Fund Agreements and the provisions of
the Declaration and By-laws comply in all material respects
with all applicable provisions of the 1933 Act, the 1933 Act
General Rules and Regulations, the 1940 Act, and the General
Rules and Regulations under the 1940 Act; and the Fund has not
received any notice from the Commission pursuant to Section
8(e) of the 1940 Act with respect to the 1940 Act Notification
or the Registration Statement.
(iv) The Underwriting Agreement has been duly
authorized, executed and delivered by the Fund.
(v) The Fund Agreements have been duly authorized,
executed and delivered by the Fund and constitute the valid
and binding agreements of the Fund, enforceable against the
Fund in accordance with their terms, except as rights to
indemnity and contribution may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Fund's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(vi) The issuance and sale of the Securities, the
execution, delivery and performance of, and compliance by the
Fund with, the Underwriting Agreement and the Fund Agreements
will not (i) conflict with the Declaration or By-laws of the
Fund, (ii) constitute a breach of or a default under, any
agreement, indenture, lease or other instrument that is filed,
or incorporated by reference, as an exhibit to the
Registration Statement or (iii) violate any Applicable Law or
any order known to us of a Governmental Authority applicable
to the Fund.
17
(vii) The Fund's authorized equity capitalization is
as set forth in the Prospectus; all outstanding Shares have
been duly authorized and validly issued, are fully paid and
nonassessable; the Securities have been duly authorized, and,
when issued and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement, will be fully paid and
nonassessable; the outstanding Shares are, and the Securities
will be, free and clear of any preemptive rights or similar
rights arising under the Delaware Statutory Trust Act or the
Declaration and By-laws.
(viii) To our knowledge, other than as described or
contemplated in the Registration Statement or Prospectus (or
any supplement thereto), there are no legal or governmental
proceedings pending or to which the Fund or any of its
properties is subject that are required to be disclosed in the
Registration Statement or Prospectus (or any amendment or
supplement to either of them in effect as of the date hereof)
which is 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 Prospectus (or any amendment or supplement to
either of them in effect as of the date hereof), or to be
filed as an exhibit thereto, which are not described or filed
as required, as the case may be; and the statements included
in the Prospectus under the heading "Description of the
Shares" insofar as such statements purport to summarize
certain provisions of the documents referred to therein,
fairly summarize such provisions in all material respects.
(ix) The statements included in the Prospectus under
the heading "Taxation," insofar as such statements purport to
summarize of matters of United States federal tax law and
regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein
in all material respects.
(x) 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 the Underwriting Agreement, the execution and
delivery by the Fund of the Underwriting Agreement and the
performance by the Fund of its obligations thereunder or the
consummation of the transactions contemplated thereby by the
Fund, except those as may be required under the securities or
blue sky laws of the State of Delaware (as to which we express
no opinion); it being understood that we 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 the Underwriting Agreement.
(xi) No (i) Governmental Approval or (ii) consent,
approval, license, authorization, order or validation of, or
filing, recording or registration with, any Governmental
Authority pursuant to the 1933 Act, the 1934 Act and the 1940
Act ("Other Approvals") is required for the valid issuance and
sale of the Shares to the Underwriters or the execution,
delivery and performance by the Fund of the Underwriting
Agreement and the Fund Agreements or consummation of the
transactions contemplated thereby except such Governmental
Approvals and Other Approvals as have been obtained.
18
(xii) To our knowledge, 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 agreement filed, or incorporated by reference,
as an exhibit to the Registration Statement, to cause the Fund
to sell or otherwise issue to them, or to permit them to
underwrite the sale of, the Securities 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; and
(xiii) The Registration Statement has become
effective under the 1933 Act and the Prospectus and SAI, which
were filed [March ], 2005 pursuant to Rule 497, have been
filed in the manner and within the time period required by
Rule 497(h) of the 1933 Act Rules and Regulations, and, to our
knowledge, 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 have been instituted or threatened by the Commission.
(xiv) The Registration Statement, at the time it
became effective, and the Prospectus as of its date (or any
supplement thereto in effect as of the date hereof), appeared
on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Rules and
Regulations (except that in each case such counsel need not
express any view as to the financial statements, schedules and
other financial information included therein or excluded
therefrom or the exhibits to the Registration Statement) and
no facts have come to the attention of such counsel that have
led such counsel to believe that the Registration Statement,
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 therein not misleading or that the Prospectus, as
of its date and as of the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading (except that such counsel need not
express any view as to the financial statements, schedules and
other financial information included therein or excluded
therefrom or the exhibits to the Registration Statement).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Fund and public officials. References to
the Prospectus in this paragraph (b) shall also include any supplements
thereto at the Closing Date.
19
(c) You shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the
Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Adviser 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 in effect as of the date hereof). The
opinion set forth in this paragraph 1 with respect to the
Adviser subsisting and in good standing as a limited liability
company under the laws of the State of New York is based
solely upon our review of a certificate of the Secretary of
State of the State of New York and a telephonic confirmation
from the Secretary of State of the State of New York.
(ii) The Adviser is duly registered under the
Advisers Act as an investment adviser and is not prohibited by
the Advisers Act, the 1940 Act, the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting
under the Advisory Agreement as contemplated by the Prospectus
(or any amendment or supplement thereto in effect as of the
date hereof);
(iii) The Adviser has full limited liability company
power and authority to enter into the Underwriting Agreement
and the Advisory Agreement;
(iv) The Underwriting Agreement has been duly
authorized, executed and delivered by the Adviser;
(v) The Advisory Agreement has been duly authorized,
executed and delivered by the Adviser and constitutes valid
and binding agreement of the Adviser, enforceable against the
Adviser in accordance with its terms except as rights to
indemnity and contribution may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Adviser's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(vi) The obligations of the Adviser under the
Underwriting Agreement and the Advisory Agreement comply in
all material respects with all applicable provisions of the
Act, the 1940 Act, the Advisers Act, the Rules and Regulations
and the Advisers Act Rules and Regulations;
20
(vii) Neither the execution, delivery or performance
of the Underwriting Agreement or the Advisory Agreement by the
Adviser, compliance by the Adviser with the provisions of the
Underwriting Agreement or the Advisory Agreement nor
consummation by the Adviser of the transactions contemplated
by the Underwriting Agreement and the Advisory Agreement
conflicts or will conflict with, or constitutes or will
constitute a breach of or default under the Certificate,
Operating Agreement or other organizational documents of the
Adviser or any Material Agreement to which the Adviser is a
party, 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 Agreement, nor will any such action
result in any violation of any Applicable Law;
(viii) To our knowledge, 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 in effect as of the date hereof)
but are not described as required or which could be reasonably
expected to adversely affect the ability of the Adviser to
perform its obligations under the Underwriting Agreement or
the Advisory Agreement;
(ix) No (i) Governmental Approval or (ii) consent,
approval, license, authorization, order or validation of, or
filing, recording or registration with, any Governmental
Authority pursuant to the 1933 Act, the Securities Exchange
Act of 1934, the Investment Company Act and the Advisers Act
("Other Approvals") is required on the part of the Adviser for
the execution, delivery and performance by it of the
Underwriting Agreement and the Investment Advisory Agreement
to which it is a party or the consummation by it of the
transactions contemplated by such agreements except such
Governmental Approvals and Other Approvals as have been
obtained; and
(x) 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 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 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 Advisory Agreement.
(xi) The Registration Statement, at the time it
became effective, and the Prospectus as of its date (or any
supplement thereto in effect as of the date hereof), appeared
on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Rules and
Regulations (except that in each case such counsel need not
express any view as to the financial statements, schedules and
other financial information included therein or excluded
therefrom or the exhibits to the Registration Statement) and
no facts have come to the attention of such counsel that have
led such counsel to believe that the Registration Statement,
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 therein not misleading or that the Prospectus, as
of its date and as of the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading (except that such counsel need not
express any view as to the financial statements, schedules and
other financial information included therein or excluded
therefrom or the exhibits to the Registration Statement).
21
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Fund and public officials. References to
the Prospectus in this paragraph (c) shall also include any supplements
thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Fund and the Adviser shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Fund and the Adviser shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of each
of the Fund and the Adviser, as the case may be, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to
the Prospectus and this Agreement and that:
(i) The representations and warranties of the Fund
and the Adviser in this Agreement are true and correct on and
as of the Closing Date with the same effect as if made on the
Closing Date and the Fund and the Adviser have complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Fund's or the
Adviser's knowledge, threatened; and
22
(iii) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto) (with respect to the certificate of the
Fund) and since the date of the Prospectus (with respect to
the certificate of the Adviser), there has been no material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund or the
Adviser, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(f) At the time of the execution of this Agreement, the
Representatives shall have received from PricewaterhouseCoopers LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information to the effect that:
(i) They are independent registered public accounting
firm 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 incorporated by reference 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) On the basis of procedures (but not an audit in
accordance with the standards of the Public Company Accounting
Oversight Board) 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 the specific items for
which representations are requested below;
Nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(i) At the date of the latest available interim
financial data and at a specified date not more than three
business days prior to the date of delivery of such letter,
there was any changes in the total assets, total liabilities,
net assets and common shares outstanding of the Fund as
compared with the amounts shown in the latest balance sheet
incorporated by reference in the Registration Statement.
At Closing Time, the Representative shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of the Section, except that the specified
dated referred to shall be a date not more than three business days
prior to Closing Time.
23
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any material change
specified in the letter referred to in paragraph (f) of this Section 7
delivered on the Closing Date from the letter delivered at the
Execution Time or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Fund and the
Adviser, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(h) The Securities shall have been listed and admitted and
authorized for trading on the AMEX, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(i) Prior to the Closing Date, the Fund and the Adviser shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Fund in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall
be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Adviser to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Adviser will reimburse the
Underwriters severally through Citigroup Global Markets Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
24
9. Indemnification and Contribution. (a) The Fund and the
Adviser, jointly and severally, agree to indemnify and hold harmless each of you
and each other Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several (including reasonable costs of
investigation), to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the Securities as originally filed or in any
amendment thereof (and including any post-effective amendment, any Rule 462(b)
Registration Statement and any Rule 430A Information deemed to be included or
incorporated therein), or in the Prospectus, any Preliminary Prospectus, any
sales material (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Fund and the Adviser will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Fund and the Adviser
by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability
which the Fund and the Adviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless each of the Fund and the Adviser, each of its
trustees, each of its officers who signs the Registration Statement, and each
person who controls the Fund or the Adviser within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the Fund
and the Adviser to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Fund or the Adviser by
or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Fund and the Adviser acknowledge that the statements set
forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
25
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Adviser and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively, "Losses") to which the
Fund, the Adviser and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Adviser and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the Adviser on the one hand (treated jointly for this purpose as one person)
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Fund and the Adviser (treated jointly
for this purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund and the Adviser on the one hand
(treated jointly for this purpose as one person) or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Fund, the Adviser and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Fund or the Adviser within the meaning of either the Act or the Exchange Act,
each officer of the Fund and the Adviser who shall have signed the Registration
Statement and each trustee or director, as the case may be, of the Fund and the
Adviser shall have the same rights to contribution as the Fund and the Adviser,
subject in each case to the applicable terms and conditions of this paragraph
(d).
26
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability from claimants on claims that are
the subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Adviser set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Fund, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (control to be determined within the meaning of the Act or
the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Adviser or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Adviser shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Fund or the Adviser. In the event of a default by any Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Fund and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
27
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, without liability
on the part of the Underwriters to the Fund or the Adviser, by notice given to
the Fund or the Adviser prior to delivery of and payment for the Securities, if
at any time prior to such time (a) trading in the Fund's Common Shares shall
have been suspended by the Commission or the AMEX or trading in securities
generally on the AMEX shall have been suspended or limited or minimum prices
shall have been established on the exchange, (b) a banking moratorium shall have
been declared either by Federal or New York State authorities or (c) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Fund and the Adviser or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Fund or the Adviser or any of the officers, trustees, directors,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; or, if sent to the Fund or the Adviser, will
be mailed, delivered or telefaxed to The Gabelli Global Gold, Natural Resources
& Income Trust (fax no.: (000) 000-0000)] and confirmed to it at Xxx Xxxxxxxxx
Xxxxxx, Xxx, Xxx Xxxx 00000-0000, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
28
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of
registration of the Fund as an investment company under the 1940 Act on
Form N-8A, as the 1940 Act Notification may be amended from time to
time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940,
as amended.
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
29
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus and any amendment or
supplement thereto (including the statement of additional information
incorporated by reference therein) relating to the Securities that is
first filed pursuant to Rule 497 after the Execution Time or, if no
filing pursuant to Rule 497 is required, shall mean the form of final
prospectus (including the statement of additional information
incorporated by reference therein) relating to the Securities included
in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act
Rules and Regulations and the 1940 Act Rules and Regulations.
30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Fund, the Adviser and the several Underwriters.
Very truly yours,
THE GABELLI GLOBAL GOLD, NATURAL
RESOURCES & INCOME TRUST
By:
---------------------------------------
Name:
Title:
GABELLI FUNDS, LLC
By:
---------------------------------------
Name:
Title:
31
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
---------------------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated X.X. Xxxxxxx &
Sons, Inc.
Gabelli & Company, Inc.
Advest, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company Incorporated
TD Waterhouse Investor Services, Inc.
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
Total..........................................